As employers navigate the implications of COVID-19 and the workplace, one of the subjects to keep in mind is the federal Family and Medical Leave Act (FMLA). Employers should be aware that currently pending legislation would temporarily amend the FMLA to, among other things, change the scope of the employers covered by the FMLA (with respect to the new provisions), expand eligibility in certain respects, and provide certain paid leave obligations in light of the novel coronavirus (COVID-19). If that legislation becomes law, employers are encouraged to consult legal counsel to assess what, if any, new obligations they may have.
In the meantime, this post is intended to provide employers with reminders and recommendations for complying with the current version of the FMLA. In addition to reviewing this post, employers should review the FMLA guidance issued recently by the U.S. Department of Labor (DOL): https://www.dol.gov/agencies/whd/fmla/pandemic.
Eligibility: Resist the urge to make FMLA available for everyone regardless of eligibility status.
- While making FMLA leave available to all may seem generous, the DOL has emphasized that it is not permissible to count leave against an employee’s 12-week FMLA entitlement if the employee is not yet eligible for leave (i.e., has