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Christopher B, Esq.
Christopher B, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 16261
Experience:  Attorney licensed for 17 years specializing in various fields.
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Question re FMLA for employers with >500 employees. If an

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Question re FMLA for employers with >500 employees. If an employee self-quarantines, is that a covered condition? We have employees who are uncomfortable and want to stay home. So - no FMLA. Others were sick (likely colds) and were told by the doctors to stay home until symptoms are gone. So - FMLA? Others actually went to the doctor, were not tested but told they were presumed positive and to go home. FMLA - yes?

See link for an article that could help:https://www.nolo.com/legal-encyclopedia/what-is-serious-health-condition-under-the-fmla.html

"Under the federal Family and Medical Leave Act (FMLA), eligible employees have the right to take time off to care for a family member with a serious health condition or to recuperate from their own serious health condition, among other things. (For information on other circumstances in which you might be entitled to time off under the FMLA, see Taking Family and Medical Leave.) Colds and other minor health concerns don't typically qualify for FMLA leave; the law is intended to provide time off only for more serious ailments. "

"The FMLA divides serious health conditions for which FMLA leave may be taken into these six categories:

  • inpatient care
  • incapacity for more than three days with continuing treatment by a health care provider
  • incapacity relating to pregnancy or prenatal care
  • chronic serious health conditions
  • permanent or long-term incapacity, and
  • certain conditions requiring multiple treatments."

We have employees who are uncomfortable and want to stay home. So - no FMLA.

Correct

Others were sick (likely colds) and were told by the doctors to stay home until symptoms are gone. So - FMLA?

Not correct. Most likely this is not considered a serious condition and is not covered by FMLA.

Others actually went to the doctor, were not tested but told they were presumed positive and to go home. FMLA - yes?

Probably correct. If this is the corona virus then it is likely considered to be a serious condition and would covered by FMLA. It depends on how serious the symptoms are but in this political environment I would not think that if it is presumed to be the COVID-19 virus, it would be covered under FMLA.

 

Please let me know if you have any further questions and please positively rate my answer if satisfied. There should be numbers from 1-5 or smiley faces next to my answer to choose from. This will cost you nothing extra and will ensure that I will be compensated by the site for my time with you.Thank you in advance.

Customer: replied 10 days ago.
Can you re-read your last sentence that starts with "It depends on how serious..."

That was poorly worded, I apologize. I would think it would be covered by FMLA if the doctor presumed the condition to be COVID-19. Overall it really depends on the actual symptoms and if the symptoms are considered serious but if the diagnosis is COVID-19, it should not be questioned (in my opinion).

Customer: replied 10 days ago.
One last part of this - we have an employee who falls under the third scenario, i.e. she is presumed positive. We haven't sent out the FMLA paperwork yet. Tomorrow our state is going to Shelter in Place. We will be laying off 20 people tomorrow, and she would be among them (not at ALL related to her FMLA). She's not protected from a layoff because she's on FMLA, right?

That is correct, she cannot be laid off BECAUSE she is taking FMLA, but can be laid off even if taking FMLA for other reasons. If she is part of a group that would have been laid off regardless of her in FMLA status, she can still be laid off legally.

Customer: replied 10 days ago.
Should we still send out the paperwork, knowing that tomorrow she will be laid off?

It is up to you but again, only serious conditions are covered. So you can wait to see if that occurs before you send out the form, so you can skip it since she will be laid off tomorrow. If she has serious symptoms, you may do it. Again, this is a pretty unprecedented time and these things are normally very cut and dry. This could be some other "normal" virus if there is no official test, so it is up to your discretion.

Customer: replied 10 days ago.
Thanks!

I am glad I could help. If you could also manually rate my answer through the website, I would really appreciate it. There should be stars with the numbers 1-5 in them at the top, right part of this page. Simply select the appropriate star to make your rating (a 5 star would be great). Thank you for your help with this.

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