February 10, 2021
Authored by: Christy Phanthavong and Lily Kurland
COVID-19 has led to significant employee absences from the workplace. While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances. Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.
For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave. Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist. At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.
Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances. As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically will, and typically will not, apply (assuming employer coverage and employee eligibility). Employers with specific questions about FMLA coverage for an employee’s absence should consult with legal counsel.
Leave Likely To Be FMLA-Protected Leave Not Likely To Be FMLA-Protected Employee has symptomatic COVID-19 that renders employee unable to work for