COVID-19 has led to significant employee absences from the workplace. While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances. Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.
For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave. Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist. At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.
Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances. As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically will, and typically will not, apply (assuming employer coverage and employee eligibility). Employers with specific questions about FMLA coverage for an employee’s absence should consult with legal counsel.
In those COVID-related situations where the FMLA may apply, employers should follow the normal FMLA procedures relating to providing notice of eligibility and rights & responsibilities, requesting an FMLA medical certification, designating the leave under the FMLA when appropriate, and tracking the FMLA leave usage.
In both situations – i.e., regardless of whether the FMLA may or may not apply – employers must be careful to consider employees’ leave rights and options under applicable state law and their existing leave policies.
 Leave for this reason may have been considered FMLA leave during a portion of 2020 as a result of the Emergency FMLA provisions of the Families First Coronavirus Response Act (FFCRA) relating to childcare. However, mandatory leave entitlements under the FFCRA expired at the end of 2020. Notably, employers who voluntarily continue to provide FFCRA benefits through March 31, 2021 are still entitled to receive a federal tax credit for such leave.