Employee Questions Regarding Leave and Accommodations During Reopening

By Sarah Langer

While HR professionals have been dealing with COVID-19-related issues in the workplace for more than six months and understandably have some COVID-19 fatigue, important issues continue to arise. A critical and continuously recurring area involves handling workplace leave and accommodations related to COVID-19. 

As many readers know, the landscape governing employee leave and accommodations includes the Family Medical Leave Act (“FMLA”), the Families First Coronavirus Response Act (FFCRA) (including the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA)), various federal regulations, the Americans with Disabilities Act (ADA), state statutes and regulations, and local ordinances. These sources of law grow and change frequently across jurisdictions, and keeping up with new and emerging developments requires close attention. 

This article begins by walking through several common questions clients have asked regarding leave and accommodations during reopening, with a particular emphasis on issue spotting and analysis. This keeps all readers in the conversation, whether your workplace has seen these issues yet or anticipates seeing them in the near future. 

(1) Should HR utilize the ADA interactive process when an employee states that they have concerns about coming to the workplace because of an ill and/or elderly relative?

Maybe, but we need further information. HR should discuss the situation with the employee to determine whether the employee has any concerns about their own health and ability to perform the essential functions of their job or instead their concern applies only to the relative. If the employee has their own health concerns and believes they may not be able to perform the essential functions of their position, then the ADA interactive process applies. Otherwise, the concerns fall outside of the ADA, though it’s advisable to discuss the situation with the employee to determine whether you might be able to make modest adjustments so as to assist your employee attend to family and work obligations.

(2) How should HR handle such concerns outside of the ADA?

HR should evaluate the situation to determine whether the FMLA applies, to include additional categories of leave set out by the FFCRA through the expiration date of those (currently December 31, 2020), and whether any additional state or local laws may apply and provide additional rights. As a reminder, these laws do not apply to all employers, and HR professionals should confirm the laws apply to their workplaces. If the FFCRA applies and the employee is eligible, the law may provide for protected leave with full or partial wages, depending on the reason for the leave. In our scenario involving an elderly relative, if the relative is subject to quarantine and the employee has a “bona fide” need to care for the relative, the employee can receive two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay. HR should be especially mindful of the patchwork of laws across jurisdictions in this area, as different states and cities have enacted laws impacting leave rights. 

(3) What if the employee cannot find childcare options while schools remain closed and require virtual learning?

If the FFCRA applies and the employee is eligible, they may obtain both sick and expanded family and medical leave under the FFCRA to care for a child during school closure related to COVID-19.  First, the employee may receive two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because of a “bona fide” need to care for a child in such circumstances. Then, as necessary, the employee may receive ten weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where the employee has a “bona fide” need to care for a child in those circumstances. 

(4) Is the answer the same for HR at all covered employers? 

In short, no. For example, the FFCRA provides an exemption for health care providers and emergency responders because the nation needs professionals in these fields to care for citizens during the pandemic. 

(5) Wasn’t that exemption declared unlawful where healthcare employers can’t use it anymore? 

No. The FFCRA itself provides for the exemption and gives the Department of Labor (DOL) authority to enact regulations concerning operation of the exemption. Recently, a federal judge in New York concluded part of the regulations to be unlawful, but it was not clear whether that decision applied nationwide. Since then, and most recently, the DOL issued revised regulations addressing issues analyzed in that case. As to the exemption, the DOL narrowed the definition of “health care provider” to match the original definition of that term under the FMLA, and included other employees who provide diagnostic, preventive, or treatment services or other services that are integrated with and necessary to the provision of patient care. 

(6) What should HR do with a stack of temperature check “sign-in sheets” that operations just provided? 

In short, preserve and analyze – and then potentially communicate and educate. Many employers have put in place safety precautions, such as temperature checks, and these come with specific legal requirements. As one example, a temperature check is generally considered a medical examination under the ADA, which means that the information must be carefully protected. In our scenario, if operations provides HR with “sign-in sheets” with employee names and temperatures, HR needs to determine how temperature checks have been conducted and recorded. A worst-case scenario would be sign-in sheets sitting out on a table where employees sign their name and then a different employee takes and writes down their temperature, with the full content of names and temperatures fully viewable to everyone who walks up. If HR determines a problem exists, HR should communicate immediately with appropriate leadership and educate on proper protection of medical information.  

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We anticipate that the broad patchwork of laws applicable to leave and accommodations during COVID-19 will see increased challenges before administrative agencies and the courts in the coming months, so HR professionals need to continue to keep up to date on all applicable laws through resources they trust. As many readers may know, SHRM offers a resource at https://www.shrm.org/resourcesandtools/pages/communicable-diseases.aspx. Additionally, a number of law firms maintain resources; Littler’s free COVID-19 resource is available at littler.com/covid-19 and includes an interactive map of jurisdictions. As to leave in particular, our colleague Jeff Nowak’s blog FMLA Insights (fmlainsights.com) follows developments closely and provides insight on changes and updates. 

Amidst all of these leave and accommodations developments, HR professionals should hold strong continue to be workplace leaders. Your ability and passion in taking care of your employer and its employees make a key difference.