And my best guesses as to the answers.
As most of our readers know, the U.S. Department of Labor issued some guidance this week on the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, which are part of the Families First Coronavirus Response Act.
The guidance clarified some things, but far from everything. Here is my list of burning questions that remain, along with some speculation about the answers. Please note that these are only my opinions and that the DOL may not agree with me.
Can expanded FMLA leave or paid sick leave be taken on an intermittent or reduced schedule basis? I’m gonna say yes. An earlier version of the legislation expressly said that the leave could not be taken on an intermittent or reduced schedule basis, but that did not make it into the final version. I will take this to mean that Congress ultimately decided intermittent or reduced schedule leave was all right.
If a state or local government puts all of its citizens on “shelter in place,” are the employees who can’t telework entitled to paid sick leave? I’m gonna say no. Well, maybe. Well, I don’t know. Congress was probably thinking about individual employees with COVID-19 needs, not a citywide or statewide shelter-in-place scenario, when it enacted this legislation. On the other hand . . . would shelter in place qualify as an isolation or quarantine order from a federal, state, or local authority? I guess it could be an “isolation order” from a government authority, couldn’t it?, in which case maybe paid leave is available for employees subject to a shelter-in-place order.
(No, I did not change my mind about this because I myself will be subject to a shelter-in-place order starting at 5 p.m. today. Well, maybe I did.)
What can an employer request or require to document the need for expanded FMLA or paid sick leave? An older version of the legislation was very specific in this regard, depending on the reason for which the leave was being taken. But the final version of the legislation says absolutely nothing about documentation. My best guess is that it will probably be all right for an employer to ask for reasonable documentation based on the reason for the leave. For example, if you can read your local news and see that the public schools in your state are closed until Tuesday after Labor Day, then you probably won’t need a note when your employee says he needs time off to care for his school-age kids. On the other hand, if an employee needs time off because her health care provider recommended that she stay home, then you will probably want to see a note from the health care provider.
How does the exclusion of health care providers as “eligible employees” work, and does “health care provider” in this context match the fairly restrictive definition in the “old” FMLA? The expanded FMLA expressly states that it is adopting the definition of “health care provider” used in the FMLA. But, as my colleague Mallory Ricci notes, that is the definition used to determine whether an appropriate medical professional has provided a medical certification for “serious health condition” FMLA leave. Thus, it is fairly narrow, including only doctors, osteopaths, chiropractors (but only for “manual manipulation of the spine to treat a subluxation that is determined by x-ray to exist”), nurse practitioners and nurse midwives but not nurses, etc. With respect to providing documentation of the need for paid sick leave, that narrow definition of “health care provider” makes sense. But for purposes of the health care provider exclusions from the definition of “eligible employee,” it seems too narrow. Even so, I’m gonna say that the narrow FMLA certification definition of “health care provider” is the one that will apply — just because that’s what the legislation says. If I’m right, and I’m probably not, that means the following will always be “eligible employees” entitled to expanded FMLA and paid sick leave: Registered nurses, licensed practical nurses, certified nursing assistants, certified medical assistants, respiratory therapists, phlebotomists, chiropractors treating the common cold, and the host of other care providers whom we lay people think of as “health care providers.”
What about employees who are self-isolating, or trying to avoid exposure? Can they take paid sick leave? I don’t think they are covered by the expanded FMLA or the paid sick leave law. BUT — may I say a word about the Americans with Disabilities Act and the Pregnancy Discrimination Act? If an employee self-isolates because of COVID-19 risks arising from an underlying medical condition, including a disability or pregnancy, then I think the employee does have some rights, although not under these new laws. I think an employer might have to provide “isolation leave” as a reasonable accommodation for the disability or pregnancy. Would the leave have to be paid? In my opinion, no, but I wouldn’t put it past the Equal Employment Opportunity Commission to say yes.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
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