If this is the case, it may trigger the employer`s obligation to consider the employee`s health or severe disability under the ADA in addition to any FMLA leave. “That`s where I make the jump to COVID-19,” Nowak said. “I am concerned that Santiago is the case that staff will cite in their FMLA case against you.” An employee may argue that her health could be worsened by COVID-19 and result in her inability to work. Not all courts can agree with this argument, Nowak noted, but it could still pose a risk to the employer. Yes, a medical certificate may be required to take FMLA leave. Under the FMLA, an employer may require certification from a health care provider if an employee requests leave due to a serious medical condition. Certification allows the employer to obtain information related to the FMLA leave request and to verify whether an employee has a serious medical condition. Vacation, if you are sick with COVID-19, can be a serious health problem of the FMLA in certain circumstances. For more information, see question 2. The DOL encourages employers to consider that during a pandemic, health care resources can be overwhelmed and it can be difficult for employees to make appointments with doctors or other health care providers to verify that they are healthy or no longer contagious.
If employees do not need to obtain a medical certificate, it can help relieve the medical system during this critical time. While leave for employees who are absent from work due to a school closure due to COVID-19 is not covered by EST, the Auditor General encourages employers to allow the use of OEE or other accrued paid leave days for this purpose. Question 4A: Employees sometimes stay home for a week or more with a child with chickenpox. Provided there are no complications, is the employee entitled to leave under FMLA? A period of incapacity for work (i.e. incapacity for work, school or other regular daily activities due to a serious medical condition, treatment or recovery) for more than three consecutive calendar days, and any subsequent treatment or incapacity for work related to the same condition, including: Under the FMLA, an ongoing treatment regimen that includes the use of over-the-counter medications, such as aspirin, antihistamines or ointments; or bed rest, fluid intake, exercise and other similar activities that can be initiated without a visit to a health care provider are not in themselves sufficient to constitute an ongoing treatment regimen for FMLA leave. This definition includes most colds, flu and other viruses that, while uncomfortable and uncomfortable, are generally short-lived and do not pose a significant health risk to the general population. However, given the uncertainties surrounding COVID-19, employers should treat actual or potential absences related to COVID-19 as eligible health events, even in the absence of complications or other mitigating circumstances. According to recent Ministry of Labor (DOL) guidelines, the leave an employee takes to avoid exposure to COVID-19 would not be protected by the FMLA. Yes. The WHD will consider telemedicine visits as face-to-face visits to determine a serious health problem according to the FMLA.
To be considered an in-person visit, the telemedicine visit must include an examination, assessment or treatment by a health care provider. be approved and accepted by state licensing authorities; and should generally be conducted by videoconference. This approach is in the public interest by advising health care facilities and clinicians across the country to prioritize urgent and emergency visits and procedures, and to obtain personal protective equipment and patient care from staff. For more information, see Field Assistance Bulletin 2020-8: Telemedicine and Critical Health Conditions under the Family and Medical Leave Act (FMLA). A “continuous treatment regimen” is defined in paragraph 825.114(b) as including, for example, a prescription drug (e.g., an antibiotic) or therapy that requires specialized equipment to correct or alleviate the condition of health (e.g., oxygen). But the regulation also makes it clear that taking over-the-counter medications such as aspirin, antihistamines or ointments; or bed rest, fluid intake, exercise and other similar activities that can be initiated without a visit to a health care provider are not in themselves an ongoing treatment regimen for FMLA discharge purposes. Answer 1C: A prescription given “in case your cold turns into something serious” raises the question of whether the existing condition is a serious health condition as defined by the FMLA. In all likelihood, the worker has not yet suffered the “complications” that would qualify the illness as a serious health condition for the purposes of FMLA leave. It is unlikely that an employee who does not follow the physician`s instructions would be subject to a “continuous treatment regimen by or under the supervision of the health care provider” as defined in the FMLA regulations. Although symptoms of COVID-19 have been reported as “flu-like,” the virus can be considered a serious health condition, depending on the circumstances.
The decision as to whether COVID-19 falls under the definition of “serious condition” depends on the severity of the condition, whether the employee was hospitalized, sought or received treatment, and whether or not COVID-19 exacerbated an existing chronic illness. If this is the case, the employee may be eligible for leave under FMLA and CFRA to remedy their condition. In developing the final regulatory definition of “serious health” in section 825.114, Wages and Hours carefully considered the legislation, legislative history, public comments, public comments received during the development of the rules, and its experience in administering the legislation under the draft regulations. As a result of this review, separate definitions were established for: (1) any period of incapacity for work due to pregnancy and antenatal care (825,114(a)(2)(ii)); (2) a serious chronic medical condition (such as asthma, diabetes, etc., section 825.114(a)(2)(iii)); (3) a permanent or long-term condition for which treatment may not be effective (such as Alzheimer`s disease, stroke, incurable diseases, etc., section 825.114(a)(2)(iv)); and (4) multiple treatments (including recovery) either for reconstructive surgery following an accident or other injury, or for a condition that may result in incapacity for work for more than three consecutive calendar days in the absence of medical intervention or treatment (such as dialysis, chemotherapy, etc., section 825.114(a)(2)(v)).
