FAQs — Family and Medical Leave Act & California Family Rights Act
From Navigating COVID-19
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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 might be entitled to leave under the FMLA if the illness is deemed a “serious health condition.” The FMLA defines that term as an illness, injury, impairment or physical or mental condition that involves either inpatient care or continuing treatment. “Continuing treatment” is ongoing medical treatment or supervision by a health-care provider.
A serious health condition may involve:
- A hospital stay –– inpatient care in a hospital, hospice or residential health-care facility, and any subsequent treatment in connection with such care, or any period of incapacity. The FMLA requires an overnight stay in the facility, whereas inpatient care under the CFRA occurs if the health-care facility admits the employee (or CFRA-covered family member) with the expectation that the person will remain at least overnight and occupy a bed, even if the patient can be discharged or transferred to another facility, and doesn't actually stay overnight.
- Absence plus treatment –– a period of incapacity longer than three consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition. The incapacity must involve:
- Treatment at least twice by a health-care provider (for only the FMLA, treatments must occur within 30 days), by a nurse or physician’s assistant under direct supervision of a health-care provider or by a provider of health-care services (for example, a physical therapist) under orders of, or on referral by, a health-care provider.
- At least one treatment by a health-care provider that results in a regimen of continuing treatment under the supervision of the health-care provider. (Note: California law does not include time limitations related to treatment. If a leave is FMLA/CFRA, follow the California law without the time limitations.)
- A chronic condition requiring treatment:
- requires periodic visits for treatment by a health-care provider, or by a nurse or physician’s assistant under direct supervision of a health-care provider;
- continues over an extended period (including recurring episodes of a single underlying condition);
- might cause episodic rather than continuing periods of incapacity (for example, asthma, diabetes, epilepsy, etc.).
- A permanent or long-term condition that requires supervision is 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 (nonchronic conditions) are absences to receive multiple treatments (and any period of recovery) by a health-care provider or by a provider of health-care services under orders of, or on referral by, a health-care provider, either for restorative surgery after an accident or other injury, or for a condition that probably would result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention treatment (for example, cancer/chemotherapy/radiation, severe arthritis/physical therapy, kidney disease/dialysis).
- Treatment for substance abuse.
NOTE: Pregnancy is considered a serious health condition under only the FMLA, not the CFRA.
The FMLA and CFRA specify that treatment does not include:
- routine physical examination
- eye examination
- dental examinations
For purposes of both acts, these measures 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
- similar activities undertaken without consulting a health-care provider
Unless hospital care or complications develop, "serious health conditions" under FMLA and CFRA regulations do not include:
- common cold
- upset stomach
- minor ulcers
- headaches (except migraines)
- routine dental or orthodontia problems
- periodontal disease
- cosmetic surgery
The determination of whether COVID-19 falls within the definition of “serious health condition” depends 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 existing chronic condition. If so, the employee might be entitled to leave under the FMLA and CFRA to address his or her condition.
Practice Tip: An employer may provide FMLA/CFRA leave to an employee who contracts COVID-19 regardless of whether the illness rises to the level of “serious health condition.” But, an employer who provides such leave is required to provide the same leave to all employees who contract COVID-19, regardless of the seriousness of their symptoms. In addition, the employer might be required to allow employees to take FMLA/CFRA leave to care for ill family members who contract COVID-19.
May an employee stay home under FMLA or CFRA leave to avoid getting COVID-19?
The FMLA and CFRA provide protected leave to eligible employees who are incapacitated by a serious health condition. That might be the case with the flu or COVID-19 if the employee experiences complications, or if he or she must 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 the 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. Employers should consider flexible leave policies in these circumstances.
If an employee has COVID-19, and it's deemed to be a serious health condition, may the employer place him or her on FMLA or CFRA leave, and, if so, is the leave paid?
If COVID-19 rises to the level of a serious health condition, the employer may place the employee on FMLA/CFRA leave. But if the employee has taken or is taking emergency family leave to care for a child whose school or child care facility is unavailable, the worker may be placed on CFRA leave. That allows 12 weeks of leave to care for his or her own serious health condition, and 10 weeks of emergency family leave to care for the child.
Under the federal Emergency Paid Sick Leave Act, the employee would be entitled to 80 hours of paid sick leave, and once that's exhausted, the employer must allow him or her to use any other accrued leave benefit, such as vacation, PTO or sick leave. In addition, under California law, the employee also might be entitled to state disability insurance payments. If so, the employer may integrate disability payment with the employee’s accrued and unused leave benefits.
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 period of time before returning to work?
Yes. But employers should be mindful that during a pandemic, health-care resources might be overwhelmed, and it might be difficult for employees to get appointments with doctors or other health-care providers to verify their health status.
Under the Americans with Disabilities Act and the Fair Employment and Housing Act, an employer may require a doctor’s note, a medical examination or a time period during which the employee has been symptom-free before it permits the employee to return to work. The employer may require these measures if, based on objective evidence, it reasonably believes that the employee’s current medical condition would:
- impair his or her 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.
If an employee’s leave is covered by the FMLA or the 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 health-care provider that the employee is able to resume work. Such policies require employers to notify employees in advance if the employer requires 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, and be mindful that such certifications might be difficult to obtain during the pandemic.
If employees taking FMLA or CFRA leave are unable to come to work, may an employer lay them off?
It depends. If an employee is covered and eligible under the FMLA or the CFRA, and is needed to care for a spouse, daughter, son or parent who has a serious health condition, or if the employee is caring for his or her own serious health condition, he or she is entitled to as much as 12 weeks of job-protected leave.
If the employer chooses to lay off employees who have exercised their right to FMLA or CFRA leave, it might be subject to retaliation claims under federal and state laws. But if employees would have been laid off despite their request for or receipt of FMLA or CFRA leave, and the decision is unrelated to the leave, the employer might be able to proceed with the layoff with limited exposure. The employer bears the burden of proof, and that can be difficult unless the employer has documented that it implemented a layoff based on legitimate business reasons, including but not limited to:
- seniority (everyone with fewer than a specific number of years of seniority was laid off);
- position (everyone in this job category was laid off);
- department (everyone in this department was laid off);
- other nondiscriminatory factors (such as a documented performance issue, that the layoff decision was made prior to the employer receiving notice of the need for leave, etc).
These 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 leave to several other employees, and finds that they can handle the additional work.
- The employer hires a temporary employee to perform the duties of the employees on FMLA or CFRA leave, and finds that the temp does a better job.
- The employer finds it necessary to lay off one person from the department, and because an employee is on FMLA or CFRA leave –– is gone from the workplace –– tabs that person for layoff.
- The employer hears through others (or even the employee on leave) that the worker is considering not returning to work at the end of the leave.
If an employee has COVID-19 and it's deemed to be a serious health condition, may the employer place the employee on FMLA or CFRA leave? If so, is it paid?
If COVID-19 rises to the level of a serious health condition, the employer may place the afflicted employee on leave per the FMLA/CFRA. If the employee has taken, or is taking, emergency family leave to care for a child whose school or child care facility is closed or unavailable, the worker may be placed on CFRA leave. It provides 12 weeks of leave to care for the employee’s own serious health condition, and 10 weeks of emergency family leave to care for the child. Under the FFCRA, emergency sick leave provides the employee with 80 hours of paid sick leave.
So, the employee diagnosed with a COVID-19 serious health condition might be eligible for leave under the FMLA/CFRA that traditionally is unpaid, but also emergency sick leave, at least for the first 80 hours of FMLA/CFRA leave. In addition, an employee may use other accrued leave benefits, including vacation, PTO or sick leave. Finally, the employee also might be entitled to state disability payments.
The employer may integrate disability payments with accrued and unused leave benefits.
Note: The employee also may take leave under the FMLA/CFRA to care for the serious health condition of a family member. For smaller employers, paid family leave might be available for employees caring for family members with the coronavirus.
Can an employee take FMLA leave during a furlough?
No, because there is no work schedule from which to take a leave. A furlough is a forced period of time off work that is intended to be temporary. During a furlough an employee isn’t paid nor is the employee supposed to perform any work. However, during a furlough the employee generally remains eligible for benefits. There is no FMLA regulation or case law that speaks to this but since there is no work schedule from which to take FMLA leave it shouldn’t be exhausted. If someone is on FMLA leave when the furlough begins the employer should consider suspending the FMLA leave until the furlough ends and determine, at that time, whether the employee still needs the FMLA leave.
- Leave — Family and Medical Leave Act & California Family Rights Act
- FAQs — Families First Coronavirus Response Act
- How Families First Coronavirus Response Act Interacts with Family and Medical Leave Act & California Family Rights Act
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