FAQs — Family and Medical Leave Act & California Family Rights Act

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FAQs

Must an employer grant FMLA/CFRA leave to an employee who has COVID-19 or who is caring for a family member with COVID-19?

An employee who has COVID-19 or whose family members have COVID-19 may be entitled to leave under the FMLA if the illness rises to the level of a “serious health condition.” The FMLA defines serious health condition to mean an illness, injury, impairment, or physical or mental condition that involves either in-patient care or continuing treatment. “Continuing treatment” is defined as ongoing medical treatment or supervision by a healthcare provider. A serious health condition may involve one or more of the following:

• A hospital stay: In-patient care in a hospital, hospice or residential healthcare facility, and any subsequent treatment in connection with such in-patient care, or any period of incapacity. FMLA requires an overnight stay in the facility, while under CFRA the inpatient care criteria is met if the healthcare facility admits the employee (or CFRA covered family member) to the facility with the expectation that the person will remain at least overnight and occupy a bed, even if it later develops that the person can be discharged or transferred to another facility, and thus, does not actually stay overnight.
• Absence plus treatment: A period of incapacity that is more than three consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition. The incapacity must also involve:
  • Treatment two or more times by a healthcare provider (for FMLA only, the two treatment must occur within 30 days), by a nurse or physician’s assistant under direct supervision of a healthcare provider or by a provider of healthcare services (for example, a physical therapist) under orders of, or on referral by, a healthcare provider.
  • Treatment by a healthcare provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the healthcare provider. NOTE: California Law does not include any time limitations related to treatment. If a leave is FMLA/CFRA, follow the California Law without the time limitations.
• Chronic conditions requiring treatment:
  • A chronic condition that requires periodic visits for treatment by a healthcare provider, or by a nurse or physician’s assistant under direct supervision of a healthcare provider.
  • Continues over an extended period of time (including recurring episodes of a single underlying condition.)
  • May cause episodic rather than a continuing period of incapacity (for example, asthma, diabetes, epilepsy, et cetera.)
• Permanent or long-term conditions requiring supervision: A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. For example, Alzheimer’s, a severe stroke, or the terminal stages of a disease.
• Multiple treatments (non-chronic conditions): Any period of absence to receive multiple treatments (including any period of recovery) by a healthcare provider or by a provider of healthcare services under orders of, or on referral by, a healthcare provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention treatment such as cancer (chemotherapy, radiation, et cetera) severe arthritis (physical therapy), kidney disease (dialysis).
• Treatment for substance abuse.
• Pregnancy: NOTE: Pregnancy is considered a serious health condition under the FMLA only but not under CFRA.

The FMLA and CFRA specify that treatment does not include:

• Routine physical examination
• Eye examination
• Dental examinations

For purposes of the FMLA and CFRA, the following do not establish a regime of continuing treatment:

• Taking over-the-counter medications such as aspirin and antihistamines, or using salves.
• Bed rest
• Drinking fluids
• Exercise
• Other similar activities that can be initiated without a visit to a healthcare provider.

The FMLA and CFRA Regulations specify that “serious health conditions” do not include the following for purposes of FMLA and CFRA, unless hospital care or complications develop:

• The common cold
• The flu
• Earaches
• Upset stomach
• Minor ulcers
• Headaches (other than migraines)
• Routine dental or orthodontia problems
• Periodontal disease
• Cosmetic surgery

The determination of whether COVID-19 falls within the definition of “serious health condition” will depend on the seriousness of the illness, whether the employee was hospitalized, whether the employee sought treatment and or received treatment and whether or not COVID-19 exacerbated an already chronic condition. If so, arguably the employee would be entitled to FMLA and CFRA leave to care for his or her own serious health condition.

Practice Tip: An employer can decide to provide FMLA/CFRA leave to any employee who contracts COVID-19 regardless of whether the illness rises to the level of a “serious health condition”. However, an employer who provides such leave to an ill employee will be required to provide the same leave to all employees who contract COVID-19 regardless of the seriousness of their symptoms. In addition, the employer may be required to also allow employees to take FMLA/CFRA leave to care for ill family members who contract COVID-19.

Can an employee stay home under FMLA or CFRA leave to avoid getting COVID-19?

As stated above, the FMLA and CFRA provides protected leave to eligible employees who are incapacitated by a serious health condition, as may be the case with the flu or COVID-19 where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA or CFRA. Employers should encourage employees who are ill with COVID-19 or suspected COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.

If an employee has COVID-19, and it is determined that it is a serious health condition, can the employer place him or her on FMLA or CFRA, and, if so, is the leave paid?

If COVID-19 rises to the level of a serious health condition in the employee, the employer may place the employee on FMLA/CFRA leave. However, if the employee has taken or is taking Emergency Family Leave to care for a child whose school or child care is unavailable, the employee can be placed on CFRA leave allowing the employee to take 12 weeks of CFRA leave to care for his or her own serious health condition and 10 weeks of Emergency Family Leave to care for his or her child whose school or child care has been closed.

In this example, the employee would be entitled to 80 hours of paid sick leave under the Emergency Paid Sick Leave Act and once the paid sick leave is exhausted, the employer must allow the employee to use any other accrued leave benefit like vacation, PTO, or sick leave. In addition, under California law, the employee may also be entitled to receive state disability insurance payments. If this is the case, the employer may integrate disability payment with the employee’s accrued and unused leave benefits like sick leave, vacation leave, and PTO.

May an employer require an employee who was out sick with COVID-19 to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Yes. However, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

Under the Americans with Disabilities Act and the Fair Employment and Housing Act, an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom-free, before it allows the employee to return to work. Specifically, an employer may require the above actions of an employee where it has a reasonable belief - based on objective evidence - that the employee’s present medical condition would:

• Impair his ability to perform essential job functions (that is fundamental job duties) with or without reasonable accommodation; or
• Pose a direct threat (that is, significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.

In situations in which an employee’s leave is covered by the FMLA or CFRA, the employer may have a uniformly applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee’s healthcare provider that the employee is able to resume work. As part of that policy, employers are required to notify employees in advance if the employer will require a return to work certification. Employers should consider the terms of a collective bargaining agreement in determining whether a return to work note is required. Employers should be aware that return to work certifications may be difficult to obtain during the pandemic.

If an employee is taking FMLA or CFRA leave and is unable to come to work, may an employer lay them off?

It depends. If an employee is covered and eligible under the FMLA or CFRA and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, or the employee is caring for his own serious health condition, then the employee is entitled to up to 12 weeks of job-protected leave.

If the employer chooses to lay off those employees who have exercised their right to FMLA or CFRA leave the employer could be responsible for retaliation under both the federal and state laws. However, if the employee would have been laid off despite the fact he or she has requested or is taking FMLA or CFRA leave and the lay-off decision is unrelated to the leave, the employer may be able to move forward with the lay-off with limited exposure. The employer bears the burden of proof and it can be difficult to prove non retaliatory motive unless the employer has documented that it implemented a legitimate lay off of the employee based on legitimate business reasons, including but not limited to:

• Seniority (for example, everyone with less than a specific number of year of seniority was laid off);
• Position (for example, everyone in this same job was laid off);
• Department (for example, everyone in this department was laid off);
• Other non-discriminatory factors (such as a documented performance issue, the lay-off decision was made prior to the employer being given notice of the need for leave, etc).

The following scenarios would not constitute a sufficient defense to an employer’s refusal to reinstate an employee after family and medical leave:

• The employer redistributes the duties of an employee on FMLA or CFRA to several other employees and finds that they can handle the additional work.
• The employer hires a temporary employee to do the duties of the employees on FMLA or CFRA and finds that the temporary employee does a better job.
• The employer finds it necessary to lay off one person from the department and because the employee is on FMLA or CFRA leave and already out of the workplace, the employer selects the individual for the lay-off.
• The employer hears through others or even the employee on leave that the employee is considering not returning to work at the end of the leave.
• For more information about FMLA see https://www.dol.gov/agencies/whd/fmla;
• For more information about CFRA see https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=12945.2
• For more information about NPLA see https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB63

SEE ALSO

• Other sections in this book

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