How HR needs to think about FMLA in a post-COVID reality

Because the Family and Medical Leave Act and other policies were never written with the COVID-19 pandemic in mind, experts are urging employers to use caution when considering their own leave programs.

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“COVID has raised a host of FMLA issues for employers and employees alike, and the pandemic has thrown us a curveball with FMLA situations,” Jeff Nowak, an attorney with Littler Mendelson, said Thursday during a live webinar hosted by HRE.

From caregiving for sick parents or children to concerns about underlying healthcare issues, there are a host of employee situations that could require FMLA leave and prompt liability concerns for organizations. Despite uncertainty about the law and COVID’s impact, employers need to treat each situation as one that could require FMLA and should walk each potential situation through the entire process, he said.

Nowak highlighted two cases in particular HR should keep top of mind: employees with asymptomatic COVID, whom the CDC advises should quarantine, and employees with underlying health issues who are concerned about the risks of returning to the workplace.

Employers should collect documentation and medical notifications before making decisions about FMLA, he added.

“We don’t know much of anything about this virus,” Nowak said. “We’ll know more about it five to 10 years,” but right now, situations should be handled “with care,” he said.

Keep in mind that employers don’t know what the EEOC or courts are going to do with a lot of this as cases pop up, said Tamika Newson, assistant vice president and legal counsel of Unum’s Employment Law Group.

“As long as you have well-reasoned explanations for why you’re making these decisions, you’ll be in a better position than saying ‘just because,’ ” Newson said.

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As for legislation and policies already in place, Daris Freeman, assistant vice president and legal counsel of Unum’s Employment Law Group, said many of the emergency leave policies that states and local municipalities enacted due to COVID are expiring this summer, and just nine states still have active paid medial leave proposals under consideration in their legislative chambers.

“I don’t anticipate any will pass this year, but they may lay the groundwork this year for more robust proposals next year,” she said.

And despite the chatter around President Joe Biden’s leave-related proposals, limited details have prompted many states to delay changes in hopes of seeing uniform federal policies.

Watch the full webinar here. 

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Nick Otto
Nick Otto is HRE’s former senior digital editor. He is a professional communicator with more than a decade of demonstrated accomplishments in newspaper and trade publishing. He has spent the past five years covering the employee benefits space and holds a bachelor’s degree from the University of Florida.