Family and Medical Leave Act Issues and Obligations

Beyond the FFCRA, employers who are covered by the federal Family and Medical Leave Act (FMLA) must provide job-protected leave and other benefits to an eligible employee who misses work due to a serious health condition of the employee’s own or a close family member. An employee’s illness caused by COVID-19 may or may not qualify as a serious health condition, depending on the circumstances.

In Many Cases, Coronavirus Will Not Be a “Serious Health Condition”

The flu and common cold do not typically qualify as serious health conditions under the FMLA, unless complications arise. Likewise, an employee out sick with coronavirus may not have a serious health condition under the FMLA. In this case, employers should not count the absence against an employee’s 12 weeks of FMLA leave. Doing so could violate the FMLA. Employers in jurisdictions that mandate employer-provided sick leave must allow employees to use their accrued/available sick leave for absences due to coronavirus illness.

Coronavirus with Complications May Be a Serious Health Condition

Coronavirus can amount to a serious health condition if complications arise from the illness, leading to, for example, hospitalization or incapacitation.  Where an employee has complications arising from coronavirus, employers covered by the FMLA must provide the employee (if eligible) with certain job protections and reinstatement rights while the employee is out on leave. The employer should also keep track of the leave and deduct it from the employee’s 12 weeks of allotted FMLA leave.

Requiring Fitness-for-Duty Certification to Return to Work

Employers may require an employee who has been out on FMLA leave due to coronavirus to satisfy any of the following before returning to work:

• Provide a doctor’s note clearing the employee to return to the workplace.
• Submit to a medical examination.
• Remain symptom-free for a specific period of time before returning to work.

Employers should apply any policy or practice uniformly and treat employees in similar situations the same. For example, if an employer asks one employee who has been out sick to submit a doctor’s note, the employer should require the same of all employees who have been out sick with pandemic influenza before returning to work.

However, please note that the CDC has stated that employers may be advised to relax return-to-work doctor’s notes requirements, depending on the availability of health care professionals during the pandemic outbreak.

Employers covered by the Family and Medical Leave Act must also be mindful of requirements under the Americans with Disabilities Act (ADA).

Americans with Disabilities Act Issues and Obligations

The ADA protects qualified employees with a disability from discrimination in the workplace. Employers covered by the ADA must consider whether an employee who becomes ill with coronavirus has a disability within the meaning of the ADA, entitling the employee to certain protections and benefits. Employers should also check applicable state disability discrimination laws for different or additional legal requirements.

Employers must not violate the ADA’s privacy provisions while managing their workforces through a pandemic. The ADA prohibits disability-related inquiries or medical examinations of current employees, except in limited circumstances, discussed below.

Coronavirus Can Be a Protected Disability

Generally, seasonal flu and other conditions of a short duration are not considered a disability under the ADA. However, complications arising from illness caused by coronavirus may lead to the condition becoming an ADA-covered disability. In addition, underlying conditions making an employee more susceptible to COVID-19 may constitute a disability that may require reasonable accommodation.

The ADA also protects employees who are regarded as having a disability. Because seasonal flu and coronavirus typically cause only a transitory impairment, employees who become ill are not covered under the ADA’s prohibition against discriminating against employees who are regarded as having a disability. However, if an employee’s pandemic-related illness complicates or becomes associated with a different condition, such as an underlying health problem, that could give rise to a “regarded as” claim.

Duty to Make Reasonable Accommodation for Employee with Disability

Under the ADA, employers must make a reasonable accommodation for an employee with a disability. Depending on the individualized circumstances, reasonable accommodation may include providing leave, allowing telecommuting, adjusting a disabled employee’s attendance requirements and/or adjusting company policy. An employer is not required to provide an accommodation to a qualified employee with a disability if the employee’s disability poses a direct threat; that is, a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

Employer’s Ability to Make Disability-Related Inquiries and Medical Examinations

An employer may not make a disability-related inquiry or require a medical examination of a current employee, unless it is both: job-related and consistent with business necessity. An employer may make a disability-related inquiry or require a medical examination if, before making a medical inquiry, the employer reasonably and objectively believes that an employee’s medical condition either impairs the employee’s ability to perform essential job functions or poses a direct threat. The employer’s reasonable belief must be based on objective evidence that is known to the employer or reasonably available.

Actions Employers Can and Cannot Take in Pandemic Preparedness and Response

On March 21, 2020, the Equal Employment Opportunity Commission (EEOC) updated it Pandemic Preparedness in the Workplace and the Americans with Disabilities Act document in response to COVID-19.

Employers with employees still working in a physical workplace may wonder if they can take employee body temperatures and ask medical screening questions in an attempt to limit the spread of the virus.  The EEOC has said that taking employee temperatures and asking medical screening is permissible during the pandemic, provided that the information sought is based on accurate and current medical information. However, any employer seeking to take employee temperatures should ensure that it has the ability to do so safely and accurately and should balance the potential workplace safety issues, taking into account the fact that some people with COVID-19 do not have a fever.  Moreover, as with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.

Wage & Hour Law

Must we keep paying employees who are not working?

Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working typically are not entitled to the wages the FLSA requires. In the case of nonexempt employees, employers need not pay employees who are not working. 

This may not be the case for employees who are classified as exempt from overtime under the FLSA. These employees are paid on a salary basis, and, in most cases, if an exempt employee performs any work at all during the workweek, the employee must be paid their entire salary for that particular workweek. There can be exceptions to this general rule. Some of the key exceptions relevant to a pandemic are outlined here, and employers should consult with an employment attorney regarding such exceptions. If an employer makes an improper deduction from an exempt employee’s salary or refuses to pay an exempt employee for days not worked, it may lead to a loss of the FLSA exempt classification of the employee, entitling the employee to overtime pay.

Permissible Deductions from Exempt Employee’s Salary

If an exempt employee misses work during a pandemic, whether an employer can deduct the exempt employee’s salary depends on various factors, including:

• Who initiates the absence, the employee or employer.
• The employee’s reason for missing work.
• Whether the employer has a bona fide sick leave plan, policy, or practice of providing compensation for salary loss caused by sickness or disability.

Keep in mind that, if your company has decided to voluntarily extend FFCRA, that may come into play.

When Employee Is Ill and Employer Has a Bona Fide Sick Leave Plan

If an exempt employee misses work because of illness or disability and the employer has a bona fide sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability, the employer may deduct an exempt employee’s salary, but only in full-day increments. For example, if an employee misses two-and-a-half days due to illness, the employer may only deduct two days of pay from the exempt employee’s salary.

When Employee Misses Work for Personal Reasons

If an exempt employee misses work due to personal reasons, other than sickness or disability, the employer may deduct in full-day increments. For example, if the employee misses two days of work for personal reasons, the employer may deduct two days of pay. If the exempt employee is absent for one-and-a-half days, the employer may only deduct the equivalent of one day’s salary.

When Exempt Employee Takes FMLA Leave

An employer may make deductions from the salary of an exempt employee taking unpaid FMLA leave. The employer may pay employees their proportionate salary only for time actually worked. The employer may also make salary deductions for any hours taken as intermittent or reduced FMLA leave during the exempt employee’s workweek without affecting the exempt status of the employee.

Impermissible Deductions from Exempt Employee’s Salary

When Employee Is Ill and Employer Does Not Have a Bona Fide Sick Leave Policy

If an exempt employee misses work due to sickness or disability and the employer does not have a bona fide sick leave policy, the employer may not deduct an exempt employee’s pay for any time, unless the employee misses an entire workweek.

When Employer Initiates Absence of Exempt Employee

An employer may not deduct an exempt employee’s pay when the employee reports ready to work. For example, if the employer initiates an absence by insisting an employee with a sick relative stay away from the workplace during a pandemic, the employer may not deduct the exempt employee’s pay, unless the employee misses an entire workweek.

Use of Accrued Vacation or Paid Time Off

There is nothing in the FLSA that prohibits employers from requiring absent employees to use accrued paid time off, even in partial day increments, so long as the employer still pays exempt employees their full salary for a workweek. The FLSA views PTO and vacation as fringe benefits that the employer has the option of providing or not providing. Many states, however, have more restrictive views of vacation as a vested benefit, and employers must comply with wage and hour laws of the states in which they have employees.

Reducing Employee Salary and/or Hours

Employers may reduce pay rate and/or hours for nonexempt workers, as long as the employee is being paid for all hours worked and the employee continues to be paid at or above the applicable minimum wage.  Note that some states have notice requirements before a wage rate change can go into effect. 

The DOL advises that employers may prospectively reduce the salary of an exempt employee, provided the change is “bona fide and not used as a device to evade the salary basis requirements.”  The salary reduction may not be related to the quantity or quality of work performed, and the employee still must receive on a salary basis the minimum salary threshold, which is $684 per week under federal law (but may be higher under applicable state law).

If you plan to utilize a PPP or EIDL loan, before making any wage or salary reduction, contact the advisor helping you through the loan process to understand the potential ramifications on loan relief.

Conclusion

Keep in mind, however, that for exempt and non-exempt employees, an employer might have a separate legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.

Even if there is not a legal obligation, employers should consider the employee relations aspect of not paying employees who may not be working if they have contracted coronavirus, are self-quarantining or are unable to work due to community disruptions, such as school closings. Consider the big picture perspective when making decisions regarding paying or not paying your employees. Some employers, for example, are adding extra time to employee leave banks, while others are allowing employees to go negative in their leave balances.

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