The Family and Medical Leave Act came out with certain new provisions under the Families First Coronavirus Response Act (FFCRA) for virus-related illnesses. The FMLA covers all employers with 50 or more employees who work for 20 or more workweeks.
Employers who employ 500 or more employees and fall outside the ambit of the FFCRA are still obliged to grant paid leave under the FMLA.
The FFCRA only covers private employers with less than 500 workers.
Here we list situations that will cover Covid-19 cases:
Employers should be covered. Under the provision, the employees who have been in the job for at least a year, working at least 1,250 hours, are eligible to take Corona related leave. The workplace should have 50 or more employees coming from within 75 miles.
Employees suffering from a serious health condition rendering them unable to perform their jobs are entitled to leave under FMLA. The health conditions covered are an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Coronavirus comes under the category of flu, which is not a serious health condition ordinarily but if it requires inpatient care or treatment by a health care provide then it can be counted as a serious health condition. Continual treatment by a health care provider includes a period of incapacity of more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition that also involves either:
In-person treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist regarding the follow-up visit, by a health care provider
In-person treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment (e.g., antibiotics) under the supervision of the health care provider.
Will the leave cover an employee staying away from the workplace due to the Covid-19?
A Department of Labor (DOL) guidance promulgated in December says leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA.
Can an employee take FMLA leave to take care of a family member down with Covid-19?
FMLA leave can be taken to care for a child (biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis), spouse, or parent (or in loco parentis) with a serious health condition. A “serious health condition” under the FMLA for an employee’s son, daughter, spouse, or parent has the same meaning as for an employee’s own “serious health condition.” An employee may take FMLA leave to care for a family member with COVID-19 if complications arise for the family member that create a “serious health condition”, and includes circumstances where a family member is unable to care for basic medical, hygienic, or nutritional needs or safety, or is unable to transport themselves to the doctor.
Can an employee claim leave to take care of a person with a weak immune system so that s/he is not exposed to the virus?
No, an employee cannot take FMLA leave to care for a close family member with a compromised immune system to avoid getting COVID-19. However, an employee may take FMLA leave to care for a family member who has a chronic serious health condition or a permanent/long-term condition requiring supervision if the close family member is experiencing a period of incapacity or treatment for incapacity.
FMLA leave cannot be taken to care for elderly family members who have no serious medical condition.