|This general guidance is based on U.S. federal employment law and the current medical assessment of COVID-19. State and local laws may apply, and medical assessments may change, resulting in different conclusions.|
- Answer 1. Not necessarily. If COVID-19 does not satisfy the regulatory definition of a “serious health condition,” employers should not count the absence against the employee’s 12 weeks of FMLA leave. An example of a situation in which the leave may not be FMLA-qualifying is when an employee is required by the employer to stay home but is asymptomatic. Employers should evaluate any applicable state mini-FMLA laws to ensure they do not contain different or additional requirements or provisions. For employers with fewer than 500 employees, certain types of leave may qualify as EFMLEA leave under the FFCRA. See our FFCRA FAQs.
A2. The portions of the regulatory definitions (29 C.F.R. Section 824.102) that most likely apply in the COVID-19 context (assuming a mild case) are the following:
- More than three calendar—not work—days of incapacity plus two treatments by a healthcare provider (the first of which must occur within seven days of the first day of incapacity and the second within 30 days of the first day of incapacity)
- More than three calendar—not work—days of incapacity plus one treatment by a healthcare provider (which must occur within seven days of the first incapacity) plus continuing treatment (including prescription medication) under the supervision of a healthcare provider
Because some individuals will not seek health care treatment unless they need urgent medical attention or they are at a higher risk for complications from COVID-19, some cases of COVID-19 will not qualify as a serious health condition simply because the employees will not have visited a doctor/healthcare provider for any treatment.
Employers with fewer than 500 employees should review the FFCRA FAQs for the requirements for emergency EFMLEA leave.
For more answers to your frequently asked questions, please select a topic below:
- Compensation and Tax Issues
- Disability Related Inquiries and Medical Examinations
- Employees with Symptoms or Exposure
- Families First Coronavirus Response Act (FFCRA)
- Health coverage
- Hiring During the COVID-19 Pandemic
- Reduction in Force/WARN
- Retirement Plan Issues
- Short-term disability coverage
- Tax Credits Under FFCRA and the CARES Act
- Vacation, Paid Time Off, and Paid Sick Leave
- Wage and Hour
- Workers’ Compensation
- Workplace Safety