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Coronavirus and the Workplace

Part III: Leave

March 3, 2020

The Family and Medical Leave Act

Employers covered by the Family and Medical Leave Act ("FMLA") must allow an eligible employee to take leave due to a serious health condition of the employee or to care for the employee’s close family member with a serious health condition. The Department of Labor, and at least one Michigan federal court, has taken the position that ordinary flu with no complications is not the sort of chronic serious health problem contemplated by the FMLA. While COVID-19 shares flu-like symptoms, it is known to cause severe illnesses, complications, hospitalizations, incapacitation, and even death. Thus, it is possible that infection by COVID-19 may involve a serious health condition, requiring covered employers to provide eligible employees with FMLA job-protected leave.

According to the Department of Labor's guidance, Pandemic Flu and the Family and Medical Leave Act: Questions and Answers, in dealing with pandemic influenza and providing FMLA leave for employees, employers should keep in mind that:

Michigan Paid Medical Leave Act

As of March 29, 2019, the Michigan Paid Medical Leave Act ("PMLA") requires Michigan employers that employ 50 or more individuals to provide eligible employees paid medical leave. Excluded from the definition of "eligible employees" are: those who are FLSA "exempt;" private-sector employees covered by a collective bargaining agreement; employees employed by the U.S. government, another state, a political subdivision of another state; an employee whose primary work location is in another state; temporary employees who work less than 25 weeks in a calendar year; and employees who work less than 25 hours per week on average.

Eligible employees may take paid medical leave for qualified reasons, including:

Accordingly, in a pandemic, eligible employees who work for covered employers may take paid leave for their own or their family members’ sickness caused by pandemic influenza. Unlike the FMLA, there is no requirement that the leave be taken for a "serious health condition" under the PMLA. Eligible employees can also take paid leave for reasons not FMLA-qualified, such as to care for healthy children whose schools are closed because of the pandemic. However, leave provided under the PMLA is limited.  In contrast to the 12-week (or 26-week for military family leave) leave allowed under the FMLA, the amount of paid family leave provided and used under the PMLA can be capped at 40 hours per year.

In requesting paid medical leave, eligible employees may be required to comply with the covered employer’s usual and customary notice, procedural and documentation, but the employer must provide the employees with at least three (3) days to provide requested documentation (unlike the 15 days allowed under the FMLA). The employer may discipline or discharge an employee who fails to comply with the employer's usual and customary notice, procedural and documentation requirements.

This is the third of a four-part series. Please find parts 1, 2 and 4 here:

Part I: Safety

Part II: Non-Discrimination

Part IV: Pay

This information is based on the facts and guidance available at the time of publication, and may be subject to change.