“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 29th blog in a series highlighting some mistakes employers can inadvertently make regarding FMLA administration.

Failing to consider an employee’s potential FMLA rights in the context of the Coronavirus.

This blog post keys off of the Jackson Lewis article published on January 28, 2020, “Coronavirus Concerns in the Workplace.”  That article mentions that the FMLA may allow employees time off under the FMLA, which we address in more detail here.

While FMLA regulations state that “the flu” ordinarily does not meet the Act’s definition of a “serious health condition,” the flu can still qualify as a serious health condition under the FMLA if it meets that definition, such as inpatient care or continuing treatment by a health care provider.  Based on recent reports, the Coronavirus could qualify as a serious health condition depending upon the specific situation.  Because of that, an eligible employee who contracts the Coronavirus—or one with a covered family member who comes down with the virus—may qualify for FMLA leave.

Also, eligible employees might be entitled to FMLA leave when taking time off for examinations to determine if a serious health condition exists, and evaluations of the condition, under the FMLA definition of “treatment.” Accordingly, an eligible employee may need FMLA leave to see a health care provider for the purpose of testing for Coronavirus—something that may become more common if the virus spreads.

Generally, employers should keep up to date as the Coronavirus situation evolves by regularly checking the websites of the CDC, WHO, DHS, OSHA, and U.S. State Department.  If issues arise in your workplace regarding the Coronavirus, keep in mind the potential FMLA rights of employees.  There also may be potential rights under any relevant state FMLA law and any state or local paid sick leave law.