Five Practical Recommendations for Managing FMLA Leave and Paid Time Off in the Post-Pandemic Era

The Family and Medical Leave Act (FMLA) constitutes one of the fundamental pillars of human resource management.

On the surface, the law seems easy to understand. Employers with 50 or more employees must provide eligible employees—those who have worked at least 1,250 hours over a period of at least one year and who work at a location where the employer employs at least 50 employees within a 75-mile radius—with up to 12 weeks of unpaid, job-protected leave within a 12-month period.

However, HR professionals are well aware of the law's complexities. Whether it's the actual meaning of "12 weeks" or sorting out notice requirements, the details of the FMLA often puzzle leave administrators. This is especially true when the law's provisions interact with an organization's paid time off policies.

Regarding the latter, the COVID-19 pandemic has brought a mixed bag for HR departments. According to three labor law experts interviewed by HR Dive, although best practices for handling the intersection of FMLA and PTO before the pandemic remain largely the same as before, the complex patchwork of state and local laws, along with the rise of long COVID as a "post-COVID" condition, itself requires a separate set of considerations.

Tip 1: The FMLA's definition of "serious health condition" remains key

First, the FMLA's definition of what constitutes a serious health condition has not changed. The U.S. Department of Labor's employer guide states on page 25 that a serious health condition is an illness, injury, impairment, or physical or mental condition "involving inpatient care or continuing treatment by a health care provider" that makes the employee unable to perform the functions of their job.

In this regard, COVID-19 may qualify under the FMLA just like other health conditions, said Dolly Clabault, HR editor at J.J. Keller & Associates. "Whether COVID-19 is a serious health condition under the FMLA is the same question as whether bursitis is a serious health condition," Clabault told HR Dive in an interview. "If it is, the employee is entitled to take leave."

Clabault noted that employers should be aware that multiple types of conditions may qualify for FMLA eligibility. This includes situations where an employee receives inpatient care (such as an overnight stay in a hospital, hospice, or residential care facility), along with any period of incapacity related to such inpatient care and subsequent treatment. It also includes situations where an employee receives continuing treatment by a health care provider. Chronic conditions such as pregnancy and asthma may also fall within the definition of a serious health condition.

"The definition has multiple parts, and not all parts apply to any particular situation," Clabault said. "You have to look at all the details."

Tip 2: Which leave runs concurrently with FMLA? Check state or local laws

Employers may know that if an employee uses employer-provided paid leave for an FMLA-qualifying reason (whether voluntarily by the employee or mandated by the employer), the employer must count that time against the employee's FMLA entitlement. In other words, the two types of leave must run concurrently.

When it comes to other types of leave, "the old admonition still holds," said Jeff Nowak, shareholder at Littler Mendelson; "Given the growing number of state and local leave and benefits laws, and the increasing number of employer-sponsored benefit plans, the FMLA is just one layer. Employers need to be aware of many additional layers when managing leave and workplace accommodations."

The California State Capitol in Sacramento, California, photographed on July 4, 2003. The state's supplemental paid sick leave law provides eligible employees with 80 hours of paid leave for COVID-19-related qualifying reasons. (Photo credit: Justin Sullivan via Getty Images)

Notably, some states have enacted public health emergency legislation that limits concurrent leave. For example, California's supplemental paid sick leave law (enacted in February and later extended through the end of 2022) provides eligible employees with 80 hours of paid leave for COVID-19-related qualifying reasons. The law states that employers may not require employees to use any other paid or unpaid leave, PTO, or vacation time before or instead of using the supplemental paid sick leave.

In Massachusetts, where the state has enacted 20 weeks of paid family and medical leave beyond the FMLA, employers also need to consider other layers, said Walter Foster, a member at Eckert Seamans.

In that example, an employee eligible for the federal 12 weeks of FMLA leave may also be eligible for Massachusetts' 20 weeks of paid leave. Foster said the two types of leave can run concurrently, but one important detail is that the first seven days of the state's 20-week leave are unpaid. During that period, employees can use PTO to fill the gap, including accrued paid sick time (up to 40 hours) they may be entitled to under state law.

These examples at least remind employers to look "very carefully" at state and local laws that may affect their concurrent leave decisions, Nowak said. "Compliance problems arise when employers ignore the big picture and focus only on the FMLA issue, when in reality the FMLA is layered on top of short-term disability or disability benefits, which are layered on top of overlapping state leave laws."

Additionally, Clabault said, the trend is that more states are enacting such laws, and each law has its own set of provisions that may or may not interact with the FMLA. "This just highlights the need for employers to stay vigilant."

Tip 3: Can an employee who tests positive for COVID-19 work from home? If so, the FMLA may not apply

Nowak said a COVID-19 infection does not necessarily translate into an FMLA leave need; if an infected employee can work from home and can perform all their essential job functions from home, "then, arguably, this is not an FMLA situation."

Foster agreed that this scenario generally holds, noting that the availability of COVID-19 vaccines and the possibility that some employees may be asymptomatic mean that an infection does not necessarily meet the FMLA's definition of a serious health condition.

However, if an employee who primarily works on-site and cannot work remotely tests positive for COVID-19 and must isolate from the site, "this could arguably be seen as a triggering event under the FMLA," Nowak said. "For me, the takeaway from this analysis is that if an employee tests positive and the result is that they need to isolate from on-site work, out of caution, I would provide the necessary FMLA notice and certification forms and give the employee the opportunity to certify that absence as an FMLA absence."

Tip 4: Long COVID may bring complexity, especially regarding intermittent leave

Public health researchers continue to study the prevalence of post-COVID conditions in the workforce, but the possibility that an infection can have lasting effects on patients is well established. According to the U.S. Centers for Disease Control and Prevention, long COVID can present with a variety of symptoms, from fatigue to shortness of breath to "brain fog."

Nowak said there is "no doubt" that employers will see a larger proportion of their workforce needing FMLA leave to address the ongoing effects of COVID-19, including long COVID, and that long COVID in particular may rise to the level of a disability under the Americans with Disabilities Act (ADA). Federal civil rights enforcement agencies have already indicated this.

"The key for employers is to learn more about the realities of long COVID and how it will affect typical employees," Nowak added. "They are certainly still in the early stages of getting their arms around this issue."

The ADA requires employers to provide reasonable accommodations to employees with disabilities. Crucially, leave may be such an accommodation, and the exhaustion of FMLA leave may be irrelevant to whether an employee is entitled to additional leave under the ADA. In February, a trucking and property management company learned this lesson the hard way, settling for $65,000 after the U.S. Equal Employment Opportunity Commission alleged the employer violated the ADA by terminating employees who could not return to work after exhausting their 12 weeks of FMLA leave.

"I have read too many court cases where managers and supervisors are the weak link in the FMLA compliance chain."

— Dolly Clabault, HR editor at J.J. Keller & Associates

Clabault added that due to the effects of COVID-19 (which can include long COVID as well as other areas such as mental health), employers may encounter more situations involving the ADA. Pandemic-related stress can lead to anxiety and physical symptoms that may fall under the FMLA, the ADA, or similar state and local laws.

"You have to go through the definitions one by one," Clabault said regarding the various laws that may be involved with long COVID. "You have to give the employee the most favorable provision of each law."

Nowak said long COVID can be particularly challenging when employees need extended or intermittent leave. "I think where it creates the biggest operational problems is that those with long COVID are likely to need intermittent leave over a long period of time," he said. "Intermittent leave is much more disruptive to an employer's operations than a specific block of leave."

Tip 5: Avoid being the 'weak link' in the FMLA compliance chain

Ultimately, manager training may be the most important tool in an employer's toolbox for preparing to manage PTO and FMLA.

"I have read too many court cases where managers and supervisors are the weak link in the FMLA compliance chain," Clabault said.

Part of the problem is that employees can notify their employers in many ways that they may need FMLA leave. Clabault said she has seen cases where employees merely crying or dozing off at work could be interpreted as FMLA notice situations. "As soon as an employee hints to the employer that their absence might be due to a serious health condition, that is when the employer should trigger the FMLA red alert."

Given mysteries like long COVID, the fact that managers and supervisors may not recognize such signs is perhaps even more concerning. "From a compliance standpoint, when an employee says, 'I can't come to work, I need some help at work, I'm having asthma-related issues or difficulty breathing,' it's easy to miss or overlook that," Nowak said. "There will be many managers who don't think of that as a potential long COVID scenario."

He added that it is crucial for employers not only to train managers to recognize common characteristics associated with long COVID, but also to involve them in the interactive process to determine whether an employee needs help at work.

The message to managers can be very direct: "Make sure you refer it to HR," Foster said. "That's a simple checkbox for the manager."