VACATION

5 tips for managing FMLA leave and PTO in the post-COVID-19 landscape

The Family and Medical Leave Act forms one of HR’s basic building blocks.

On its face, the law may appear easy to grasp. Employers with 50 or more employees must provide eligible employees — defined as those who’ve logged 1,250 hours of service during a period of at least one year, and who work at a location at which the employer employs at least 50 employees within 75 miles — up to 12 weeks of unpaid, job-protected leave over a 12-month period.

HR professionals, though, know all too well about the law’s complexities. Whether it’s a question of what “12 weeks” actually means or sorting out notice requirements, the FMLA’s wrinkles can frustrate leave administrators to no end. And that can be especially true when the law’s provisions interact with an organization’s paid time off policies.

As far as the latter is concerned, COVID-19 offers HR a mixed bag. While best practices for handling the intersection of FMLA and PTO pre-pandemic are still largely the same as they were before, a complex patchwork of state and local laws and the rise of post-COVID-19 conditions under the umbrella of long COVID-19 merit their own set of considerations, according to three employment law experts who spoke to HR Dive.

#1: The FMLA’s ‘serious health condition’ definition is still key

First and foremost, the FMLA’s definition of what constitutes a serious health condition has not changed. Page 25 of the U.S. Department of Labor’s employer guide states that a serious health condition “is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider” that makes an employee unable to perform the functions of the job at hand.

In that respect, COVID-19 could fit the FMLA’s definition in the same manner as other health conditions, according to Dolly Clabault, a human resources editor at J.J. Keller & Associates. “Whether COVID is a serious FMLA health condition is the same question as whether bursitis is a serious health condition,” Clabault told HR Dive in an interview. “If it is, the employee is entitled to absences.”

Employers should note that there are multiple types of conditions that may qualify for FMLA, Clabault said. That includes situations in which the employee is given inpatient care such as an overnight stay in a hospital, hospice or residential care facility, as well as any period of incapacity of subsequent treatment in connection with such a stay. It also includes situations in which the employee receives continuing treatment from a healthcare provider. Pregnancy and chronic conditions such as asthma, could also fall under the serious health condition definition.

“There are multiple parts of that definition, and not all parts will apply in any given situation,” Clabault said. “You’ve got to look at all the details.”

#2: Which leaves run concurrently with FMLA? Check state or local laws.

Employers are likely aware that if an employee takes employer-provided PTO for an FMLA-qualifying reason (either because the individual wants to or because the employer requires it), the employer must count that time against the employee’s FMLA allotment. In other words, the two types of leave must run concurrently.

When it comes to other types of leave, “the old admonition is true,” said Jeff Nowak, shareholder at Littler Mendelson; “The FMLA is one layer in light of the growing number of state and local leave and benefit laws, and in light of a growing number of employer-sponsored benefits programs. There are a number of additional layers that employers need to be mindful of as they’re administering leave and accommodations in the workplace.”

The California state capitol is shown July 4, 2003 in Sacramento, California. Supplemental Paid Sick Leave law provides covered employees with 80 hours of paid leave for qualifying COVID-related reasons.

The California state capitol is shown July 4, 2003, in Sacramento, California. The state’s Supplemental Paid Sick Leave law provides covered employees with 80 hours of paid leave for qualifying COVID-19-related reasons.

Justin Sullivan via Getty Images

 

Notably, some states have enacted public health emergency legislation that limits concurrent leaves. For example, California’s Supplemental Paid Sick Leave law, enacted in February and later extended through the end of 2022, provides covered employees with 80 hours of paid leave for qualifying COVID-19-related reasons. The law specifies that an employer may not require employees to use any other paid or unpaid leave, PTO or vacation time before the employee uses the supplemental paid sick leave or in lieu of that leave.

In Massachusetts, a jurisdiction that has enacted a 20-week paid family and medical leave entitlement that exceeds the FMLA, employers have other layers to consider, said Walter Foster, member of the firm at Eckert Seamans.

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