Some Employers Forgo FMLA Certifications During COVID-19 Pandemic

​Workers who are sick from the coronavirus may want to take Family and Medical Leave Act (FMLA) time off. Should employers worry about FMLA abuse when there's a pandemic? Some legal experts say no; others say yes but suggest that employers consider accepting late medical certifications.

Medical certification is a key tool for employers to fight FMLA abuse. Jeff Nowak, an attorney with Littler in Chicago, recommended that employers still seek FMLA certifications but offer extended deadlines for completing them.

But Janie Schulman, an attorney with Morrison & Foerster in Los Angeles, said, "Now may be the time to overlook FMLA abuse."

In light of the coronavirus pandemic, some employers are not requiring doctors' notes if employees report respiratory illnesses, said Joan Casciari, an attorney with Seyfarth in Chicago.

Employers should consider accepting telemedicine consults instead of FMLA medical certification, said Marjory Robertson, assistant vice president and senior counsel for Sun Life in Wellesley Hills, Mass.

Even if the employer insists on a doctor's note, FMLA medical certification in addition to that may be unnecessary. If a doctor's note states that an employee must be off work for 14 days because of flu-like symptoms and can return to work when symptoms subside, an employer could accept the note as a medical certification for the FMLA leave. The employer also could consider the note as equivalent to fitness for duty if the employee affirms that all symptoms have subsided, she said.

DOL Guidance

Employers may require medical certifications under the FMLA, the U.S. Department of Labor (DOL) said in March 9 guidance on the coronavirus and the FMLA. But during the pandemic, health care professionals may be too overwhelmed to provide FMLA certifications, the DOL noted.

It also may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

If a cough remains mild, then it does not implicate the FMLA, said Isaac Mamaysky, an attorney with Potomac Law in New York City. Mamaysky noted, though, that the FMLA does apply to illnesses that require hospitalization or recurring absences for medical care. "Regardless, employers can and should send home any employee with coronavirus symptoms and also allow those who self-report symptoms to stay home without requiring any certifications or doctors' notes," he said.

Certification requirements can dissuade employees who are sick with the coronavirus from staying home, he said. Certification also can overburden medical practices, which are struggling to meet coronavirus demand, he added.

[SHRM Resource Spotlight: Coronavirus and COVID-19]

Nonetheless, the DOL said that during a pandemic health crisis, under the Americans with Disabilities Act, an employer would be allowed to require a doctor's note, medical examination or time period during which the employee has been symptom-free before letting the employee return to work. An employer may require these when it reasonably believes—based on objective evidence—that the employee's medical condition would present either one of these challenges:

• Impaired ability to perform essential job functions with or without reasonable accommodation.
• A direct threat, meaning a significant risk of substantial harm to others that cannot be reduced or eliminated by reasonable accommodation.

Under the FMLA, an employer may have a uniformly applied policy that requires employees to obtain certification from their health care providers stating that they are able to resume work, the DOL added.

Administrative Challenges for Some

For now, many employees are telecommuting rather than reporting to work in person. "It is difficult to predict with precision what kind of challenges businesses will face with so much of the workforce working remotely," Schulman said. Many companies already are proficient at processing FMLA requests remotely.

But some smaller companies may still be using hard-copy documents. "It will probably be challenging for them to handle FMLA requests from afar," she said. "Remember that really small companies are not covered by FMLA."

These employers are covered under the FMLA:

• Private-sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year.
• Public agency, including a local, state or federal government agency, regardless of the number of workers it employs.
• Public or private elementary or secondary school, regardless of the number of workers it employs.

In addition, only eligible employees are covered by the FMLA. An eligible employee is one who:

• Works for a covered employer.
• Has worked for the employer for at least 12 months.
• Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave.
• Works at a location where the employer has at least 50 employees within 75 miles.

If an employer still requires medical certification that a worker has a serious health condition covered by the FMLA, it should avoid denying leave simply due to late certification, Nowak said. During the pandemic, "employers should be prepared to show that they gave the employees every opportunity and multiple opportunities to provide certification," he said.

Giving Employees Some Leeway

Employers should follow the law but be mindful that employees may not be able to comply as they normally would, said Matt Morris, vice president of FMLASource at ComPsych in Chicago.

Tamara Devitt, an attorney with Haynes Boone in Costa Mesa, Calif., recommended being consistent in the application of leave policies but flexible during the coronavirus pandemic.

The U.S. Centers for Disease Control and Prevention "clearly asks us to take a leap of faith that, during this crisis, we will, as a country, put our selfish interests in the back seat and each do our share to promote the efforts to mitigate the effects of the pandemic," Schulman added.

"For employers, that leap of faith means trusting that most employees will not take advantage of the crisis to snag some FMLA leave," she said. "For employees, that leap of faith means that they will trust their employers to make employee health and safety a top priority."