Q: If an employee is diagnosed with the virus, can the employee take FMLA for COVID-19?
A: Please visit this page for a detailed answer to this question 

Q: Must an employer grant leave to an employee caring for a family member that is diagnosed with COVID-19?
A: It Depends.  FMLA has a narrow definition of “family member,” therefore, if the employee is seeking leave to care for a family member that is not covered under FMLA, then FMLA would not apply.  Furthermore, the family member must be experiencing a “serious health condition,” and the employee’s need for leave is because (1) the family member is unable to care for his/her own medical, safety or other needs; (2) the family member needs help in being transported to the doctor; and/or (3) the employee is providing psychological comfort and reassurance to the family member.  However, employers may be subject to Families First Coronavirus Response Act (FFCRA).

Q: Must I allow an employee to take time off because he or she is afraid of contracting COVID-19?
A: Generally, No.  Employers have been encouraged to review current leave of absence / time off policies and be ready to be more flexible.  While “being afraid to come to work” is itself not a qualifying leave reason under any regulated leave entitlement, employers may nonetheless consider how flexibility to their leave of absence / time off policies – which includes telecommuting policies – help balance the current situation.  Maintaining open lines of communication is encouraged.

Q: Can an employee stay home under FMLA leave to avoid getting COVID-19?
A: Generally, No.  The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with 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.  Employers should encourage employees who are ill with COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances. 

Q: Can an employee stay home under FMLA leave to avoid getting COVID-19?
A: Generally, No. The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with 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. Employers should encourage employees who are ill with COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.  

Q: Must I allow parents time off to care for children who have been dismissed from school?
A: It Depends.  There are no federal laws requiring private employers to provide time off if/when employees child(ren) schools or childcare facilities are closed.  However, state/municipal paid sick leave requirements may provide this time away, so employers need to mindful of any applicable paid sick leave requirements.  In addition to considering additional flexibility at this time, employers may be subject to Families First Coronavirus Response Act (FFCRA).

Q: Must I provide paid sick leave to employees who are out of work because they have COVID-19 or have been exposed to a family member with influenza?
A: It Depends.  Federal law generally does not require employers to provide paid leave to employees.  However, there are states/municipalities that have paid sick leave requirements that may provide the paid sick time for these situations.  Furthermore, employers may be subject to Families First Coronavirus Response Act (FFCRA).

Q: May employers change their existing paid sick leave or paid time off policy?
A: Yes, But.  Employers may change their sick leave or paid time off policy so long as it is done in a manner that does not discriminate between employees because of a protected class (such as race, gender, age, religion, national origin, and/or disability).  Furthermore, employers should contemplate any paid sick leave requirements that apply to them.  Finally, employers subject to Families First Coronavirus Response Act (FFCRA) are prohibited from diminishing their paid sick leave program because of the new law.

Q: Will employees who are personally affected by COVID-19 receive Short Term Disability benefits?
A: It Depends. Generally, Short Term Disability insurance carriers have indicated that they are remaining status quo with respect to their STD claims handling.  They will review each claim submitted on a case-by-case basis, whether the reason for initiating a STD claim is due to quarantine or because the employee has been diagnosed with COVID-19.  In either scenario, the employee has to satisfy the definition of “disability” per the STD plan.

Q: May employers change their STD plan designs to provide STD benefits to individuals affected by COVID-19?
A: Generally, No. If you have a fully insured STD plan with a disability insurance carrier, the short answer is “no.”  If you have a self-funded STD plan, the disability carrier/vendor may work with you to expand your STD program, particularly to provide STD benefits for those quarantined due to COVID-19.  However, be prepared to provide very specific parameters and definitions to the disability carrier/vendor for how this expanded STD benefit would exist.  Furthermore, clients have asked whether they can eliminate any STD elimination period for those filing for STD benefits due to COVID-19.  We advise against this because of disability discrimination concerns.

Q: Has COVID-19 impacted statutory disability insurance and paid family/medical leave requirements?
A: Yes, But. Not all statutory disability insurance and paid family/medical leave requirements have responded similarly.  For instance, California has expanded their State Disability Insurance (SDI) and Paid Family Leave (PFL) benefits to cover those quarantined or diagnosed with COVID-19.  By contrast, Washington’s Paid Family Medical Leave (PFML) has expanded to cover those diagnosed with COVID-19, but not those who are quarantined.  Furthermore, not all states with statutory disability and/or paid family/medical leave requirements have made changes – as of now, some have not yet expanded their programs.

Q: If I outsource leave administration to a third-party vendor, will they track COVID-19-related absences for me?
A: It Depends.  Third party vendors who provide leave administration services, including Short Term Disability benefit administration, are continuing to closely monitor the impact of COVID-19 and assessing how best to evolve their administrative services in turn.  If you outsource leave administration, we encourage you to contact your vendor partner to understand how their capabilities and services are or are not changing.

Q: Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
A: Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

Q: Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
A: Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

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