It has been over six months since the Families First Coronavirus Response Act (“FFCRA”) went into effect and created two new types of leave related to the COVID-19 pandemic. Now as employees reach the end of the leave provided by the FFCRA, employers are left wondering what to do next with those employees who need further leave. This article provides guidance for employers navigating this complicated issue in order to make a decision that both complies with the law and is in the best interest of the business.
To start, Congress passed the FFCRA in March of 2020 to combat economic issues arising from the COVID-19 pandemic. The act includes two provisions for COVID-19 related leave, the Emergency Family and Medical Leave Expansion Act (“EFMLA”) and the Emergency Paid Sick Leave Act (“Paid Sick Leave”), which are available to most employees who work for employers with less than 500 employees. EFMLA entitles an eligible employee to a total of 12 workweeks of leave (the first two unpaid) if the employee is unable to work due to the need to care for a child whose school or care provider is closed or unavailable due to COVID-19. Paid Sick Leave entitles eligible employees to up to 80 hours of paid leave if the employee is unable to work due to one of six reasons specified in the Act. Importantly, the leave provisions of the FFCRA are set to expire on December 31, 2020.
As the COVID-19 pandemic has continued and employees reach the end of the leave provided by the FFCRA, employers are left dealing with difficult leave and accommodation issues under the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”).
If an employee has exhausted his paid sick leave, he or she may be able take additional leave under the FMLA if the employee is still experiencing the effects of COVID-19 or caring for a family member with the virus. FMLA leave will only be available in this situation if the employee meets the eligibility requirements (hours worked, duration), works for a covered employer (number of employees in a certain radius) and the case of COVID-19 is severe enough to qualify as a serious health condition.
Under the FMLA regulations, an illness will qualify as a serious health condition if it involves inpatient care or continuing treatment by a healthcare provider. Whether COVID-19 qualifies as serious health condition will depend on the individual circumstances. For example, a case of COVID-19 with serious complications that requires hospitalization would likely qualify, while an asymptomatic case likely would not. Further, if the leave is needed to support a family member with COVID-19, the employee will also have to show he or she is needed to care for the family member, which encompasses physical and physiological care aspects.
As another example, an employee who has to care for a family member with serious complications from COVID who is unable to perform basic support tasks (medical, hygienic, etc.) would likely qualify, while a family member with minor symptoms would likely not.
Note, paid sick leave is not a type of FMLA leave so it does not reduce the amount of FMLA leave an employee is entitled to. Conversely, EFMLA is a type of FMLA leave, and it is subtracted from an employee’s total FMLA allotment.
After an employee exhausts his or her Paid Sick Leave, the employee could still be entitled to leave under the ADA. The ADA requires that employers provide reasonable accommodations to otherwise qualified individuals with a disability. During the pandemic, employees whose disabilities put them at greater risk from COVID-19 or employees with preexisting mental health conditions like anxiety may potentially seek additional leave as a reasonable accommodation under the ADA. Accordingly, if a disabled employee requests a work accommodation, the employer should engage with the employee to determine if the condition is actually a disability and an accommodation is needed (the employer can require medical documentation supporting the need for leave). Then the employer and employee should discuss what kind of accommodation would enable the employee to perform the essential job functions and determine whether an accommodation is feasible.
In addition to unpaid leave, employers may also want to consider other possible accommodations such as telework, restructuring of nonessential job duties, or modified work schedules and shift assignments to limit the employee’s possible exposure while still allowing them to do their job. However, the employer is not required to provide the accommodation that the employee requests (just one that is effective) or any accommodation that will create an undue hardship.
If neither the ADA nor FMLA are applicable, an employer is generally not required to provide additional time off to an employee who has exhausted his FFCRA leave under federal law. Absent an applicable state or local law, employers have various options for how to treat these situations. The employer could require the employee to use his accumulated paid time off, allow the employee unpaid leave, advance paid time off for the employee to use, propose work modifications that would allow the employee to work or even deny the request for work modifications (including leave) altogether (assuming the employee does not need to be quarantined under guidance from the Center for Disease Control and other similar state agencies).
Ultimately, it is up to the employer to decide how flexible it wants to be. The important thing is that the employer understand the reasons why the employee is requesting leave and evaluate the situation in its entirety to make a decision that best serves the interests of the business.
Matthew Scully and Gabriell Jeffreys are attorneys at Burr & Forman in Birmingham. Both practice in the firm’s Labor & Employment practice group. Scully, who is a partner with the firm, may be reached at [email protected]. Jeffreys may be reached at [email protected].