DOL Updates Q&As on COVID-19 and the FMLA

The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) has updated its “COVID-19 and the Family and Medical Leave Act Questions and Answers” web page, originally published in 2020. As before, the Q&As explain that—under the FMLA—covered employers must provide eligible employees with job-protected, unpaid leave for specified family and medical reasons. Additionally, employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same terms that were in effect before they took leave.

The updates reorient the Q&As toward employees (rather than employers), add information about employee leave under the Families First Coronavirus Response Act (FFCRA), and remove a question about preventing employee abuse of Family and Medical Leave Act (FMLA) leave.

The Q&A revisions also:

• Alert readers to state or federal leave requirements that might apply even when the FMLA does not;
• Update language explaining how telemedicine visits can establish a serious health condition under the FMLA; and
• Affirm the employer’s ability to request a physician’s note to certify the need for FMLA.

In addition, the Q&As also expand the discussion of nondiscrimination laws employers must avoid violating during layoffs.

This Compliance Bulletin contains the DOL’s Q&As.

Action Steps

Employers covered by the FMLA should review the new FAQs to ensure their policies comply with the DOL’s guidance.

Highlights

• Serious Medical Condition – Employees may be entitled to leave for their own or a family member’s COVID19 illness if it constitutes a “serious medical condition” under the FMLA.
• FFCRA Leave Enforcement – The DOL will enforce the FFCRA for leave taken or requested between April 1, 2020 and Dec. 31, 2020.
• Extension of FFCRA Tax Credits – The American Rescue Plan Act extended tax credits for employers who voluntarily provide FFCRA leave through Sept. 30, 2021.
• Child Care Leave – Federal law does not mandate leave to care for a healthy child. The FFCRA required leave for certain COVID-19- related child care through Dec. 30, 2021.
• Testing Before Returning to Work – Employers may require a COVID-19 test before employees return to work from FMLA leave if it is nondiscriminatory.