Coronavirus / COVID-91 and employers with over 500 employees

Yesterday's post concerned the Families First Coronavirus Response Act (FFCRA), i.e, the paid leave bill that mandates employers with less than 500 employees provide some type of paid leave.  

But what about employers with 500 employees or more?

One thing to remember is that employers who have 500 or more employees are likely (depending on the number of employees at specific locations) already covered by FMLA.  So if they have someone who has tested positive or has symptoms of the Coronavirus – or has a close relative who has it and the employee needs to care for them, the employee likely has a “serious health condition” which would trigger FMLA leave and restoration rights.  

The Department of Labor is sadly non-committal on whether having Coronavirus symptoms or testing positive is FMLA covered.  The DOL issued a webpage on the issue a few days ago, https://www.dol.gov/agencies/whd/fmla/pandemic, but the page does not say whether testing positive or having COVID-19 symptoms is a serious health condition.  

The criteria for having a serious health condition are not all that high.  For conditions such as COVID-19 it can mean hospitalization or an incapacity for three days with “continuing treatment by a health care provider.” The latter is broadly defined to meant at least one in person visit to a doctor with a follow up.  But even here, there is an “extenuating circumstances” exception to the in person follow up visit requirement.  I would think the Coronavirus would unquestionably qualify as an “extenuating circumstance.”   In short, I would think an employer could and should designate the leave as FMLA covered and protected. 

But, to be clear, the DOL webpage also states that “[l]eave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.”  I'll assume this is correct (though I expect an impacted employee will at some point argue they are due FMLA for avoiding exposure).  So, unlike the FFCRA, the FMLA does not cover employees who need to stay home because a child’s school or day care is closed. Of course, if the child or close family member has a serious health condition, the leave would very likely then be FMLA covered.