The Family and Medical Leave Act (FMLA) is one of the foundational regulations for HR work. On the surface, the law seems easy to understand: employers with 50 or more employees must provide eligible employees—those who have worked at least 1,250 hours over the past year and are employed at a site where the employer employs at least 50 employees within a 75-mile radius—with up to 12 weeks of unpaid, job-protected leave within a 12-month period.

However, HR professionals know the law's complexity. Whether it's the actual meaning of "12 weeks" or clarifying notice requirements, the details of FMLA often puzzle leave administrators. The issues become especially prominent when the law's provisions interact with an organization's paid time off (PTO) policy.

Regarding the latter, the COVID-19 pandemic has brought a mixed bag for HR departments. According to three labor law experts interviewed by HR Dive, best practices for handling the intersection of FMLA and PTO before the pandemic have largely remained unchanged, but the complex patchwork of state and local laws, as well as the rise of long COVID-19 as a post-pandemic condition, require new considerations from employers.

Key Point 1: The Definition of "Serious Health Condition" Under FMLA Remains Critical

First, the FMLA's definition of a serious health condition has not changed. The U.S. Department of Labor's employer guide states on page 25 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, making the employee unable to perform their job functions."

In that regard, a COVID-19 infection may qualify under FMLA just like other health conditions, said Dolly Clabault, HR editor at J.J. Keller & Associates. "Whether COVID-19 is a serious health condition under FMLA is the same question as whether bursitis is a serious health condition," Clabault told HR Dive. "If it is, the employee has the right to be absent."

Clabault noted that employers should be aware that there are various types of conditions that may qualify for FMLA. This includes situations where an employee receives inpatient care (such as an overnight stay in a hospital, hospice, or residential care facility), along with any period of incapacity related to that hospitalization and subsequent treatment. It also includes cases where an employee receives continuing treatment by a health care provider. Pregnancy and chronic conditions (such as asthma) may also fall within the definition of a serious health condition.

"The definition has multiple parts, and not all parts apply to any particular situation," Clabault said. "You have to look at all the details."

Key Point 2: Which Leave Runs Concurrently with FMLA? Check State or Local Laws

Employers may already know that if an employee uses employer-provided PTO for an FMLA-qualifying reason (whether voluntarily or mandated by the employer), that time must count against the employee's FMLA entitlement. In other words, the two types of leave must run concurrently.

For other types of leave, "the old admonitions still apply," said Jeff Nowak, shareholder at Littler Mendelson. "FMLA is just one layer among many state and local leave and benefits laws, plus an increasing array of employer-provided benefit programs. Employers need to be mindful of multiple layers when managing leave and workplace accommodations."

The California State Capitol in Sacramento, California, photographed on July 4, 2003. The state's supplemental paid sick leave law provides eligible employees with 80 hours of paid leave for COVID-19-related reasons. The California State Capitol in Sacramento, California, photographed on July 4, 2003. The state's supplemental paid sick leave law provides eligible employees with 80 hours of paid leave for COVID-19-related reasons. Photo credit: Justin Sullivan via Getty Images

Notably, some states have enacted public health emergency legislation that limits concurrent leave. For example, California's supplemental paid sick leave law (enacted in February and later extended through the end of 2022) provides eligible employees with 80 hours of paid leave for COVID-19-related reasons. The law states that employers cannot require employees to use any other paid or unpaid leave, PTO, or vacation time before or in lieu of the supplemental paid sick leave.

In Massachusetts, which has enacted 20 weeks of paid family and medical leave rights, exceeding the FMLA's 12 weeks, employers need to consider other layers, said Walter Foster, a member at Eckert Seamans. In that case, employees eligible for 12 weeks of federal FMLA leave may also qualify for 20 weeks of state paid leave. Foster said the two types of leave can run concurrently, but an important detail is that the first 7 days of the state's 20-week leave are unpaid. During that period, employees can use PTO to fill the gap, including up to 40 hours of accrued paid sick leave they may be entitled to under state law.

Nowak said these examples remind employers to look "very carefully" at state and local laws that may affect their concurrent leave decisions. "Compliance issues arise when employers ignore the big picture and focus only on FMLA issues—and the reality is often FMLA layered on top of short-term disability or disability benefits, then layered on top of overlapping state leave laws."

Additionally, Clabault noted that the trend is for more states to enact such laws, each with its own provisions that may or may not interact with FMLA. "This just highlights the need for employers to stay vigilant."

Key Point 3: Can Employees Who Test Positive for COVID-19 Work from Home? If So, FMLA May Not Apply

Nowak said a COVID-19 infection does not automatically mean FMLA leave is needed; if an infected employee can work from home and perform all essential job functions, "then it can be argued this is not an FMLA situation."

Foster agreed that scenario generally holds, noting that the existence of COVID-19 vaccines and the possibility that some employees may be asymptomatic means an infection may not necessarily meet the FMLA's definition of a serious health condition.

However, if an employee who primarily works on-site and cannot work remotely tests positive for COVID-19 and must isolate and cannot come to work, "then it can be said this is an event that triggers FMLA," Nowak said. "In short, if an employee tests positive and needs to isolate and cannot work on-site, out of caution, I would provide the necessary FMLA notice and certification forms to give the employee the opportunity to certify that absence as FMLA leave."

Key Point 4: Long COVID May Bring Complexity, Especially with Intermittent Leave

Public health researchers continue to study the prevalence of post-COVID conditions in the workforce, but the fact that infections can have long-term effects on patients is well recognized. According to the U.S. Centers for Disease Control and Prevention, long COVID can present with a variety of symptoms, from fatigue and shortness of breath to "brain fog."

Nowak said there is "no doubt" that employers will see a greater proportion of employees needing FMLA leave due to post-COVID sequelae, including long COVID, and long COVID in particular may constitute a disability under the Americans with Disabilities Act (ADA). Federal civil rights enforcement agencies have made that clear.

"The key for employers is to learn more about the realities of long COVID and its impact on the average employee," Nowak added. "They are still in the early stages of dealing with this issue."

The ADA requires employers to provide reasonable accommodations to employees with disabilities. Importantly, leave can be an accommodation, and the exhaustion of FMLA leave does not affect an employee's right to additional leave under the ADA. In February, a trucking and property management company paid the price for this—settling with the U.S. Equal Employment Opportunity Commission (EEOC) for $65,000 after the agency alleged it violated the ADA by terminating employees who could not return to work after exhausting their 12 weeks of FMLA leave.

"I've read too many court cases where managers and supervisors are the weak link in the FMLA compliance chain."

— Dolly Clabault, HR editor at J.J. Keller & Associates

Clabault added that employers may increasingly encounter situations involving the ADA due to COVID-19 impacts, including long COVID and other areas such as mental health. Pandemic-induced stress can lead to anxiety and physical symptoms that may fall under FMLA, ADA, or similar state and local laws.

"You have to look at the definitions of each law individually," Clabault said regarding laws that may be affected by long COVID. "You have to give employees the most favorable provisions of each law."

Nowak said long COVID can be especially tricky when employees need extended or intermittent leave. "I think the biggest problem it poses for operations is that long COVID patients are likely to need intermittent leave over a longer period," he said. "Intermittent leave is far more disruptive to employer operations than a one-time leave."

Key Point 5: Avoid the "Weak Link" in the FMLA Compliance Chain

Ultimately, manager training may be the most important tool for employers in managing PTO and FMLA.

"I've read too many court cases where managers and supervisors are the weak link in the FMLA compliance chain," Clabault said.

Part of the problem is that employees have multiple ways to notify employers that they may need FMLA leave. Clabault said she has seen cases where an employee crying or falling asleep at work was considered FMLA notice. "As long as an employee hints to the employer that their absence may be due to a serious health condition, the employer should trigger the FMLA alert."

Given mysteries like long COVID, the fact that managers and supervisors may not recognize such signs is even more concerning. "From a compliance standpoint, when an employee says 'I can't come to work, I need help, I have asthma symptoms or difficulty breathing,' it's easy to overlook or ignore that situation," Nowak said. "There will be many managers who don't see it as a potential long COVID scenario."

He added that it's crucial for employers to train managers not only to recognize the common features of long COVID but also to engage in the interactive process to determine whether employees need help at work.

The message to managers can be very direct: "Make sure you report to HR," Foster said. "For a manager, it's a simple checkbox."