FAQ: Family and Medical Leave Act

Is there official guidance on the coronavirus crisis and the FMLA?

Yes. The U.S. Department of Labor Wage and Hour Division, which oversees the FMLA, has issued guidance You can find it here: www.dol.gov/agencies/whd/fmla/pandemic.

What does the US DOL guidance say?

The general point of the guidance is that the requirements of the FMLA are unchanged and apply equally to the situation of a pandemic as to other situations. Rules for eligibility for FMLA leave are the same. Similarly, rules for qualifying for FMLA leave are the same. If an employee or a family member is ill from coronavirus to the extent that they have a “serious health condition,” they would be eligible for up to 12 weeks of unpaid FMLA leave.

What is a "serious health condition?"

Not all illnesses are “serious health conditions” that trigger FMLA eligibility. Generally, before an illness becomes a “serious health condition,” there must be three consecutive days of incapacity from work coupled with ongoing treatment. Conditions that require
inpatient hospital care are also “serious health conditions.” The requirements for a “serious health condition” are discussed in detail in U.S. DOL Opinion Letter FMLA-87, which is available here: https://www.dol.gov/agencies/whd/opinion-letters/fmla/fmla- 87.

May a healthy employee use FMLA leave to stay home from work to avoid exposure to coronavirus?

Not all illnesses are “serious health conditions” that trigger FMLA eligibility. Generally, before an illness becomes a “serious health condition,” there must be three consecutive days of incapacity from work coupled with ongoing treatment. Conditions that require inpatient hospital care are also “serious health conditions.” The requirements for a “serious health condition” are discussed in detail in U.S. DOL Opinion Letter FMLA-87, which is available here: www.dol.gov/agencies/whd/opinion-letters/fmla/fmla-87.

If an employee is on FMLA leave but the students are not attending a physical school, does the time students are not at school due to coronavirus count against my FMLA leave?

Yes. Although students are not attending school, educational activities are continuing remotely so the schools are not “closed” for FMLA purposes. This applies whether the FMLA leave started before districts closed their physical schools or during the time of remote teaching.

If an employee is out on sick leave, does the time students are not attending a physical school due to coronavirus count against my sick leave?

The answer to this question is governed by the collective bargaining agreement and not the FMLA. However, similar principles to those governing FMLA may apply to sick leave. When collective bargaining agreements do not have a specific provision covering a situation, the past practice under the agreement can be an aid for interpretation. Since the schools are not “closed,” the period students are absent could count against sick leave. This applies whether the FMLA leave started before districts closed their physical schools or during the time of remote teaching. This question could be clarified by collective bargaining.

What if an employee has a non-coronavirus issue that would qualify for FMLA leave or sick leave that prevents returning to normal work after the public health emergency ends?

If you have an issue that may require an extended absence after students return to class in their physical school buildings, it would be prudent to raise the issue with the employer now so your employer knows when what to expect when schools reopen. Your local union can assist you in dealing with your employer. 23.

Can employees on FMLA leave or sick leave when the district closed the physical school buildings and moved to distance learning end leave earlier than planned?

This is a complicated question that may vary depending on the facts. An employee seeking to return from approved leave early should consult their local union to assist in discussions with the district. Employees using FMLA leave for parental leave should be cautioned, however, that they may not be able to jump in and out of FMLA leave. That is, parental leave must be taken continuously so once teaching moves back into the district’s physical buildings, they would not be able to “resume” parental leave at that time (though FMLA leave would remain available for other qualifying reasons).