• Jackson Shields Yeiser

Can Employees Seeking Leave to Avoid COVID-19 Qualify For FMLA?

By Paula Jackson

July 30, 2021

Is an employee who requests leave to avoid contracting COVID-19 eligible for FMLA? According to the Department of Labor, an employee who requests leave solely to avoid getting COVID would not be covered by FMLA.[1]

However, the employee could still be eligible for FMLA if he cannot work because of a serious mental or physical health condition caused by his concern over potentially contracting COVID, such as clinical anxiety or heart problems. To qualify, the condition must cause overnight hospitalization, last for over three days and result in certain medical treatments, or be a flare-up of a chronic condition for which the employee has at least two medical treatments per year.[2]

Even if the employee is not eligible for FMLA leave to avoid COVID, other laws may need to be considered. For instance, he could potentially qualify for leave (or other action) as a reasonable accommodation under the Americans with Disabilities Act if he has a physical or mental condition that limits a major life activity, including a condition that is worsened by the pandemic (e.g., anxiety) or that makes him at high-risk for COVID (e.g., cancer).[3] In addition, OSHA may also require certain protections (e.g., barriers, teleworking, or leave) for employees at-risk for COVID.

This article is for informational purposes only and is not intended to provide legal or tax advice. Receipt of or viewing information on this web site does not create an attorney-client relationship. You may contact our firm to establish such a relationship, but in any event, please consult an attorney or tax professional of your choosing for advice on this or any other legal topic.

[1] COVID-19 and the Family and Medical Leave Act Questions and Answers,” U.S. Department of Labor, https://www.dol.gov/agencies/whd/fmla/pandemic#4 (last checked July 30, 2021). [2] 29 C.F.R. § 825.112-115. [3]See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, at D.1.-D.2 (last checked July 30, 2021).

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