Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
COVID-19, declared a pandemic by the World Health Organization (WHO), has infected individuals in every state in the U.S. Not surprisingly, the impacts of COVID-19 permeate large facets of everyday life, and the workplace is no exception.
Most employers are familiar with the federal Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) and any relevant state or local paid sick leave laws applicable to their worksites. But there are other, lesser-known laws potentially implicated amid the COVID-19 crisis, including kin care laws, quarantine measures, and laws that apply when a state declares a public emergency. In addition, the U.S. House of Representatives passed a bill to address concerns raised by COVID-19 and, among other things, it includes requirements that certain employers provide additional paid sick leave and family and medical leave to employees affected by COVID-19. The bill is currently with the Senate and may move rather quickly towards enactment. Some local and state governments also are attempting to address employer and employee leave concerns in light of the COVID-19 pandemic.
Perhaps the more straightforward workplace questions to answer involve employees who contract COVID-19 or whose close family members contract COVID-19. The harder questions involve those where employees or employees’ family members may have been exposed but have no symptoms. In this article, we tackle several common questions regarding leaves of absence entitlements that may be triggered by the COVID-19 pandemic.
As this area of the law is changing rapidly due to federal, state, and local measures, employers should keep abreast of developments and contact counsel with specific concerns.
Are Employees Infected with COVID-19 Eligible for Protected Leave Under the FMLA and/or Similar State Family and Medical Leave Laws?
It depends. The FMLA provides up to 12 weeks of unpaid, job-protected leave for eligible employees with a serious health condition. A “serious health condition” is defined as an illness, injury, impairment or physical or mental condition that involves “inpatient care . . . or continuing treatment by a health care provider.” “Inpatient care” includes any hospitalization overnight. “Continuing treatment” generally means that an individual is incapacitated (and cannot work) for more than three consecutive calendar days and receives continuing treatment by a health care provider (e.g., multiple doctor’s appointments and/or follow up care including prescription medication). Individuals that contract COVID-19 and experience serious symptoms requiring inpatient care, including hospitalization, will be deemed to have a serious health condition under the FMLA. Individuals that contract COVID-19 and suffer serious symptoms requiring multiple visits from a doctor and/or continuing treatment including prescription medication will generally be FMLA eligible as well.
Employees who contracted COVID-19 but suffer only mild symptoms, however, may not be covered by the FMLA. The WHO and the U.S. Centers for Disease Control and Prevention (CDC) report that the majority of individuals contracting COVID-19 experience mild symptoms including a cough, fever and shortness of breath. Illnesses with such symptoms (e.g., the flu) historically do not rise to the level of a serious health condition, and would not be covered by the FMLA. As such, an individualized assessment of the circumstances surrounding each potential FMLA qualifying event must be made to determine whether the regulatory definitions of a serious health condition are met.
Several states also have corollary family and medical leave laws with similar guidelines and requirements to the FMLA, but there are key differences. For example, several states’ laws use broader definitions, such as what constitutes a serious health condition or covered family member, and may provide additional time off and/or pay while on leave. In addition to consulting FMLA regulations, employers should consult their respective state and local laws to ensure compliance.
May Employees Use FMLA and/or Similar State Family and Medical Leave to Care for A Family Member that Contracts COVID-19?
Similar to situations with employees who contract COVID-19 themselves, and as discussed above, whether an employee can use FMLA to care for a parent, child or spouse if that person has a serious health condition will depend in part on the person’s symptoms and treatment. States with corollary leave laws often have expanded definitions of a covered family member, so in many states, employees may be eligible for leave to care for domestic partners, siblings, grandparents and grandchildren.
If an Employee’s Time Off Does Not Qualify for Leave Under the FMLA and/or Similar State Family and Medical Leave Laws, Are There Any Other Leaves to Which They May Be Entitled if They or Their Close Family Member Contracts COVID-19?
Yes. Even if an employee is not entitled to leave under the FMLA or similar state laws (either because an employer is not covered by the FMLA or because the illness does not rise to the level of a “serious health condition”), employees may be entitled to other protected time off.
Americans with Disabilities Act. Employees that contract COVID-19 may be considered disabled under the ADA or similar state or local laws. Once again, this determination depends on the severity of an individual’s symptoms. For example, if the condition impairs a major life activity, for example, “breathing,” the employee could be considered disabled and thus protected under the ADA. If an employee seems to be disabled by COVID-19, or requests a reasonable accommodation, an employer must engage in the usual interactive process and assess whether the individual can be accommodated, either by working from home or, possibly, by taking a protected leave of absence.
Paid Sick Leave. Employees working in a jurisdiction that mandates paid sick leave may be entitled to use accrued, unused sick time for themselves or to care for a covered family member if they contract COVID-19. If a PTO policy is used by an employer to meet its paid sick leave obligations under state or local law, then that time may also be used by employees working in such locations. Several jurisdictions with such paid leave laws define a covered family member much more expansively than the FMLA and similar laws, thereby providing employees with protected time off to care for a family member who may not otherwise be covered. For example, Washington State, where the COVID-19 outbreak has been severe, permits employees to use paid sick leave to care for siblings, grandparents and grandchildren. New York City’s paid sick leave law covers individuals related by blood and individuals with whom the employee has a close association that is the equivalent of a family relationship.
Kin Care. In addition to paid sick leave, some jurisdictions have kin care laws, which permit an employee to use their sick leave or other paid time off to care for a family member who is sick, if company policy allows use for an employee’s own sickness. Some, but not all, such laws limit how much leave employees can use for kin care. Employees with covered family members who have contracted COVID-19 may use all or part of their paid time off to care for the family member. Definitions of covered family members vary by jurisdiction.
What About Employees Without Symptoms Who Have Been Exposed? Are There Any Protections for Employees Under Quarantine?
Yes, in certain jurisdictions. Many state and federal agencies have advised that individuals who came into close or extended contact with someone who has tested positive for COVID-19 should be quarantined, as they have become “exposed” to the virus. Whether there are job-related leave protections for such employees will depend on the jurisdiction in which they live.
Paid Sick Leave. Under some paid sick leave laws—including in Arizona, Montgomery County, Maryland, Michigan, New Jersey, Westchester County, New York, Oregon, Pittsburgh, Pennsylvania and Rhode Island—employees may use leave when a health authority or health care provider determines an employee's or an employee’s covered relation's presence in the community may jeopardize others’ health because of the individual's exposure to a communicable disease, whether or not the person actually contracted the communicable disease. Notably, health authorities or health care providers must make the determination to quarantine the employee. Without such a determination, a voluntary self-quarantine may not be covered by paid sick leave, although a significant number of employers are proactively allowing use of paid time off for employees who self-quarantine. The majority of paid sick leave statutes, however, are silent regarding quarantines.
Nearly all paid sick leave laws allow employees to use leave for preventive care. These provisions might impliedly cover quarantines. The majority of laws envision the actual use of medical care, however, so a self- or employer-instituted quarantine without medical care technically may not be a covered paid sick leave use. A few laws use broader terminology (e.g., preventative care, not just preventive medical care) and others include catchall language (e.g., other medical reasons) that could potentially apply to these situations. For example, in California, preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities.
Other Laws. Employers should keep in mind that there are other laws, in addition to leave laws, that may protect quarantined employees. Several states prohibit employers from taking adverse action against an employee who is under quarantine by a state or pubic authority. For example, in Minnesota, an employer may not “terminate, discipline, threaten, or penalize an employee because the person was isolated or quarantined by the public safety authority.” Minn. Stat. § 144.4196. Delaware, Maine and South Carolina have similar provisions. Maine provides even greater protections and explicitly covers voluntary self-quarantine. Under Maine law, an employer must grant paid or unpaid leave from work if an employee is unable to work because the employee is in quarantine, isolation or subject to a control measure “in accordance with extreme public health emergency information or directions issued to the public or one or more individuals.”
What if the Business/School Closes Due to a Public Health Emergency?
Some states and local sick leave laws provide employees with job-protected leave, when absent from work when their employer’s business closes due to a public health emergency. As written, the laws require a public official to close a business. Without such an order, an employer deciding to close down a place of business due to a public health emergency like COVID-19 technically would not be a covered paid sick leave laws.
The same rules apply if a child’s school or place of care is closed because of a public health emergency – jobs may be protected but a public official must make the determination.
Regardless of Coverage, Can Employers Allow Employees to Use Paid Sick Leave Provided Under a Paid Sick Leave Law Even if the Law Does Not Cover the Absence?
Employers are free to allow employees to use available paid sick leave for a self-induced quarantine or for another purpose not explicitly covered under an applicable paid sick leave law.
Employers may consider taking certain proactive steps when establishing a temporary policy to address absences resulting from the COVID-19 pandemic. Employers should provide employees with written notice that explains the expansion of permitted pick leave uses, the reason for the change and the circumstances, i.e., that it is one-time exception for the COVID-19 coronavirus. Employers also may want to limit an employee’s use for self-quarantine to 14-days (or 14 days from the last known possible contact), or some other time period as recommended by health officials, provided such limitation is consistent with applicable law. The policy should make clear that the change is temporary and that the company reserves the right to discontinue the policy change at its sole discretion.
For employers that are not covered by a paid sick leave law, company policies will govern, and companies may choose to temporarily modify their policies.
Can Employers Require Employees to Use Paid Sick Leave to Cover an Illness or Quarantine Necessitated by COVID-19?
Certain paid sick leave jurisdictions permit employers to count covered absences against the employees’ sick leave bank. In Vermont, employers can adopt a policy that requires employees to use paid sick leave for an absence that is for a covered use under the law. Some states, however, explicitly prohibit such a practice. For example, in New Jersey, employers cannot require employees to use paid sick leave even where the absence is for a covered use; employees must choose to do so.
The majority of state and local paid sick leave laws, however, are silent. Absent express authority allowing employers to require employees to use mandatory paid sick leave for a covered absence, such a practice carries risk. Employers should expect that an enforcement agency may side with the employee should a dispute arise.
Can an Employer Require an Employee to Stay Home If They Are Suspected of Contracting COVID-19?
Employers must be careful to avoid discriminating against individuals who are disabled or perceived as disabled because they are exhibiting symptoms suggestive of having contracted COVID-19, or against individuals belonging to certain races or nationalities where the virus is most prevalent. Employers may implement a policy prohibiting employees that recently traveled to certain places (as identified as high risk by the CDC) from coming to work for 14 days. Employers should not send home individuals because they have a stuffy nose, cough, or other mild symptoms that could be due to a variety of illnesses. If employers elect to adopt a policy that requires employees to stay home, they should consider whether such time is compensable under applicable laws.
What Should Employers Do to Understand Their Leave Obligations?
Employers should monitor agency websites for evolving COVID-19 leave guidance. We have reached out to state and local enforcement agencies, such as those enforcing paid sick leave laws, encouraging the agencies to issue detailed public guidance clarifying issues relevant to the COVID-19 outbreak. We anticipate such agencies will publish guidance in the near future. Based on agency activity thus far, employers should bear in mind that agencies may broadly interpret their laws to cover absences connected to COVID-19.