How constructive COVID-19 checks, underlying situations intersect with the FMLA

Employers face a key challenge in their efforts to ensure compliance with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) as the coronavirus pandemic extends through 2021. Jeff Nowak, shareholder at Littler Mendelson, and Matt Morris, vice president at FMLASource, said in a webinar on December 9th.

“With regard to COVID-19 there is practically no case law in this area,” said Nowak.

Nevertheless, those responsible for compliance with the regulations can take some information from the guidelines of the federal authorities as well as from the small number of legal proceedings that have dealt with issues related to COVID-19, according to the speakers. The webinar addressed a number of common FMLA and ADA questions that employers have come across this year.

Does an employee’s positive COVID-19 test trigger the FMLA?

A positive test “almost certainly” begins a period of FMLA vacation, Nowak said, especially when some type of inpatient care is involved with an associated period of incapacity or subsequent treatment. In addition, a period of incapacity for work of more than three consecutive days with continued treatment also triggers the law.

If an employee is not disabled or asymptomatic, the employer must postpone the employee’s medical certification. If the employee does not grant or decline certification, employers may want to follow guidelines from the Centers for Disease Control and Prevention (CDC). The agency advises a Quarantine from work for at least 10 days without testing. “This time is FMLA vacation,” said Nowak.

If such an employee can telework, the FMLA vacation could not apply, he noted. However, employers must ensure that they appropriately document the situation if FMLA is offered to an employee who voluntarily chooses to work from home.

How does a condition like asthma affect COVID-19 guidelines?

An employee with asthma may come to her employer and state that she and her doctor are concerned about breathing problems from COVID-19 or that she is concerned that her health will get worse if she catches COVID-19.

Nowak said this is a common scenario for employers with many different variations. The CDC, he noted, provides a non-exhaustive list of conditions These are likely to be made worse when a person is infected with COVID-19. Employers may believe that the employee is not guaranteed FMLA vacation because an employee with such a medical condition is not currently disabled.

Case law cuts both ways on the question of whether an employee can take FMLA leave if they fear they will be unable to work. However, Nowak pointed out a case by the Federal Supreme Court in 2014, Santiago v. Connecticut Department of Transportationin which one employee said he could not work overtime during the winter months due to cluster headaches.

The court not only denied the summary judgment against the employer, but also cited an example in its decision: taken directly from the FMLA regs – an employee with asthma who has been advised by a health care provider to stay home from work if the pollen count exceeds a certain level. The court then applied this example to imply that overtime like pollen could make Santiago’s health worse and that FMLA was therefore applied.

“Here I am making the jump to COVID-19,” said Nowak. “That worries me Santiago This is the case that employees will bring against you in their FMLA case. “An employee could argue that COVID-19 could worsen their health and result in incapacity for work. Not every court can buy that argument, Nowak noted, but it could still be a risk to the employer.

If an employee detects an illness and links it to her incapacity for work, employers should treat the situation as a potential FMLA situation, Nowak said. From there, the employer can send the relevant notification and certificate.

Should HR renew remote work requirements for employees with underlying conditions?

Nowak continued with the asthma example, giving the example of a manager, Gabe, who has asthma but is able to do his job from home. Gabe is initially allowed to telework for four weeks, but at the end of this period, Gabe asks to continue teleworking. Should HR decline the request?

This type of example is central to a federal court case in 2020, Peeples v Clinical Support Options, Inc. The case should give employers “a little break,” said Nowak. The employer in Peeples provided the manager with personal protective equipment, arguing that managers should return to work. However, the court ruled that the employer did not conduct an individual assessment and issued an injunction allowing the manager to work from home during the pandemic.

The fact that employer’s provision of protective equipment was not viewed as part of an individual assessment is a “big deal,” said Morris. “Even if we as employers do all we can, given the nature of this disease, it may not completely reduce the risk for this worker.”

The guidelines of the US Equal Employment Opportunity Commission state this Employers are not required to telework as a reasonable precaution under the ADA if There is no handicap restriction that requires teleworking. However, the guidelines also provide that a temporary teleworking experience may be relevant for considering a re-request. Likewise the court in Peeples stated that such time of remote work might be relevant in the sense that it is a trial period to determine whether remote work might be a reasonable accommodation, Morris said.

What if an employee is generally afraid to return to work?

In the event that an employee who does not have an illness states that she is uncomfortable returning to work due to COVID-19, employers should make it clear that they operate a safe workplace in accordance with state and local safety guidelines, Morris said. Employers can also note what specific measures they have taken to ensure safety in the workplace.

However, employers also need to be careful, especially if the employee in question is someone they know is dealing with anxiety or stress. “Depression and anxiety are going through the roof in 2020,” said Morris, citing the results of a recent Boston University study that shows this One in four adults in the United States had symptoms of depression this year. “You need to think about the environment you are in and whether or not the anxiety of the person who described it is actually a serious health condition or a disability.”

In this case, this can trigger an employer’s obligation to consider the severe health or disability of the employee under the ADA in addition to a possible FMLA vacation.

Even precautionary measures like handing out N95 masks and socially distant work areas may not provide an individual response for an employee with a severe health condition, Morris said. “This is not necessarily an accommodation that you provide to this employee.” Instead, employers can have a discussion with the employee to discuss what the employee may need or want. “If it’s ADA, that doesn’t necessarily mean you have to allow it … but you have to have this discussion.”