Managing Employee Leave During Covid-19

By Melissa M. Tetreau

Human Resources professionals are all too familiar with navigating the confusing interaction between the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), and workers’ compensation laws. Then add a global pandemic, employees who are scared, or otherwise disincentivized to return to work, and the new Families First Coronavirus Response Act (FFCRA) to the mix. Clearly when it comes to employees needing leave from work, employers are dealing with more than ever.

To begin, employers must determine what laws apply to them. The FMLA applies to employers with 50 employees in a 75-mile radius. Yet, the FFCRA applies to all employers with less than 500 employees. This means that many employers who are not typically covered by the FMLA must provide eligible employees with paid sick leave and Emergency FMLA under the FFCRA. Additionally, employers with 15 or more employees are covered by the Americans with Disabilities Act (ADA) (and those with just one employee are covered by Michigan’s Persons with Disabilities Civil Rights Act).

Next, HR professionals need to understand the reason that the employee is requesting leave. Employees who cannot work (or telework) due to any of the following reasons may qualify for up to 80 hours of paid sick leave under the FFCRA:

The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
The employee is experiencing symptoms of COVID-19 AND seeking a medical diagnosis;
The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2); or
The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter is closed.

Employees who need leave to care for a child whose school or daycare is closed further qualify for 10 weeks of paid Emergency FMLA. Employers cannot require concurrent use of other types of paid leave such as vacation or sick time. Yet, use of Emergency FMLA counts towards an employee’s total 12-week FMLA entitlement. Be sure to track all uses of FMLA, whether under the FFCRA or not.

After expiration of their 80 hours of paid sick leave, employees may qualify for continued leave under the FMLA. The FMLA provides job-protected leave for, among other things, an employee’s serious health condition or for the employee to care for a spouse, child, or parent with a serious health condition.

Employees who are diagnosed with COVID-19 (or who are caring for a spouse, child, or parent with COVID-19) may qualify for continued leave under the FMLA. Whether or not COVID-19 is considered a “serious health condition” under the FMLA depends on the circumstances of the employee’s illness. An employee who is diagnosed with COVID-19 but is asymptomatic is unlikely to be found to have a serious health condition. On the other hand, an employee who suffers from a severe case of COVID-19 or who has related complications may qualify. Employees who take FMLA leave may also qualify for short term disability benefits, depending on the terms of an employer’s Short Term Disability Plan, if any.

Further, Governor Whitmer’s Executive Order 2020-36 (“EO”) requires that any employee who tests positive for COVID-19 or displays fever, atypical cough, or atypical shortness of breath stay home until they receive a negative COVID-19 test or until three days have passed without symptoms and at least seven days have passed since becoming symptomatic.

Under the same EO, employees who come into close contact with a symptomatic or confirmed COVID-19 positive individual must also remain home until the sick individual receives a negative COVID-19 test or until 14 days have passed since the close contact occurred. If an employee must stay home under the EO but does not qualify for or has exhausted FFCRA or FMLA leave, the employee should be placed on an unpaid leave of absence until he or she can safely return to work.

Finally, there may be instances where an employee affected by COVID-19 requests an accommodation under the ADA or analogous Michigan law. COVID-19 in and of itself is unlikely to qualify as a disability under these laws. Yet, employees may be at a higher risk for contracting the virus due to an unrelated disability. In these instances, it remains the employee’s responsibility to request a reasonable accommodation.

Once HR professionals understand the interaction of the relevant leave laws, the next issue is how to apply these laws to employees with a COVID-19 diagnosis. Pursuant to Governor Whitmer’s Executive Orders, as well as CDC and OSHA guidance, employees with COVID-19 must be removed from the workplace. But what’s next?

If employees have not yet exhausted their paid sick leave under the FFCRA, they will qualify for up to 80 hours if they are both symptomatic and seeking a COVID-19 diagnosis. While it is the employee’s responsibility to request paid sick leave, it is the employer’s responsibility to make sure that their workers are aware of this entitlement by, at the least, posting the FFCRA Employee Rights Notice. Employers who provide paid leave under the FFCRA are eligible for a tax credit to compensate for such leave, but must provide documentation to support the qualifying payments. Therefore, employees should put their FFCRA leave requests in writing.

Absent any complications, employees who suffer from COVID-19 may return to work once any period of quarantine or isolation has ended, as well as resolution of symptoms. Resolution of symptoms is measured by one of two strategies: the Test-Based Strategy or the Symptom-Based Strategy.¹ The CDC currently recommends use of the Symptom-Based Strategy, outlined here:

The Symptom-Based Strategy:
At least 24 hours have passed since resolution of fever without the use of fever-reducing medications;
Improvement in symptoms; and
Sufficient time has passed since symptoms first appeared:
For moderate cases, at least 10 days
For severe cases, at least 20 days

Employees will no longer qualify for paid sick leave under the FFCRA once they return to work (or telework) based on resolution of symptoms or once they exhaust their 80 hours of paid leave, whichever is earlier.

If an employee is unable to return to work upon the expiration of 80 hours, employers must evaluate whether or not the employee is suffering from a serious health condition for which he or she would qualify for FMLA leave. If not (or once FMLA leave expires), the employer should then consider whether the employee is entitled to continued leave or other reasonable accommodation for a disability. As mentioned before, COVID-19 in and of itself is unlikely to qualify as a disability. But, an employee may suffer from underlying health conditions or complications that entitle him or her to protection under the ADA.

Clearly, navigating the myriad leave laws in the midst of COVID-19 is not a simple task. However, the guidelines set forth above and the advice of competent employment counsel can assist HR professionals to ensure compliance.

Melissa Tetreau is a Senior Associate at Bodman PLC in the Workplace Law Practice Group. She counsels employers on compliance with state and federal labor and employment laws, represents them in connection with employment disputes, and assists employers and individuals in connection with immigration matters. Visit bodmanlaw.com for more information.