Family and Medical Leave (FMLA) Guidelines for Employers

How to Treat Employee Leaves and Return to Work During COVID-19 and Beyond

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More of your employees may need sick leave and family leave to care for themselves and their loved ones with the ongoing challenge of COVID-19. At least one federal law can help you decide how to respond to these situations. The Family Medical Leave Act (FMLA) requires that employers with more than 50 employees must give them unpaid, job-protected leave for specific family and medical reasons. 

The 2020 Families First Coronavirus Response Act (FFCRA) was a temporary law that required employers with fewer than 500 employees to give paid sick leave and family medical leave to employees for specific COVID-19 reasons. It was in effect for leaves and payments from April 1, 2020 through Dec. 31, 2020.

How Do These Laws Affect My Business and Employees During COVID-19? 

The FFCRA included two kinds of COVID-19-related leaves: sick leave for employees, and family medical leave for family situations. COVID-19 leave rules were for paid leave for specific amounts of time. There were different payment amounts, lengths of time, and qualifications for each of these two types of leave.

The FFCRA expanded FMLA rules for family and medical leaves. It added paid leave to the unpaid family medical leave that some employees were entitled to. You had to qualify employees for COVID-19-related family and medical leave and continue to give them unpaid FMLA leave and job protection if they couldn't return to work when their COVID-19 paid leave ended, up to the maximum FMLA time.

This didn't affect FMLA rules for employees taking paid sick leave under FFCRA rules because the FMLA doesn't cover sick leave. An employee may be entitled to sick leave or sick pay under state or local law, a union contract, or your own company policy. 

The FFCRA also included a tax credit to help employers cover some of the cost of granting these leaves, from April 1, 2020 through Dec. 31, 2020. This portion of the FFCRA has been extended through Sept. 30, 2021 by the American Rescue Plan Act of 2021.

Here’s an overview:

Law Family Medical Leave Employee Sick Leave Law in Effect
FFCRA Paid for COVID-related reasons only Paid for COVID-related reasons only 4/1/20 to 12/31/20
FMLA Unpaid for all reasons including COVID Not included Continuing

Does the FMLA Apply to My Business and Employees? 

Taking an FMLA leave means that an eligible employee is taking an unpaid leave of absence from your business with job protection. The employee can have up to 12 work weeks of leave in a 12-month period (including nonconsecutive time off) for several reasons relating to childbirth, adoption, care for a family member, military duty, or the employee’s serious illness. 

First look at how many employees you have in order to determine whether the FMLA rules apply to your business. You must give eligible employees FMLA leave if your business has 50 or more employees for at least 20 work weeks this year or last year. 

You don’t have to pay employees while they are on non-coronavirus-related FMLA leave, but you must protect their job as long as they continue to qualify for the FMLA leave. 

Check for individual employee eligibility if the FMLA applies to your business. Eligibility depends on three criteria:

  • The employee has worked for your company for at least 12 months (this time doesn’t have to be continuous).
  • They've worked at least 1,250 hours during the 12 months immediately before the leave begins.
  • They've worked at a location within 75 miles at which you employs at least 50 people. 

What’s the Difference Between FMLA Leave and Sick Leave? 

There is no federal law requiring that employers must give employees paid sick leave, other than the 2020 coronavirus provision under the FFCRA. Each employer treats sick leave differently, deciding whether they want to pay employees for this time off from work. 

Employees have a right to take that paid leave when they are taking unpaid FMLA leave if you give them paid sick leave. You may require that they use the paid leave. 

How Do I Verify an Employee’s Request for FMLA Leave? 

You have the right to require that a serious health condition be supported by a doctor’s certification. You may also require documentation of the familial relationship for family members' health conditions.

What Must Employees and Employers Do During the Leave? 

Employers must continue group health insurance coverage during the leave, and employees on leave must continue to pay their share of the premiums. 

How Does the Job Protection Requirement Work? 

An employee must be restored to the same job they held when the leave began when they return from FMLA leave, or to an “equivalent job” that’s virtually identical to the original job. Any benefits due to the employee during the leave period must be resumed at the same level. But an employee isn’t protected from actions that would have happened if they weren't on leave, such as a layoff or a decrease in overtime. 

What If an Employee Doesn’t Return to Work? 

You must get a medical certification of the reason for the leave at the end of an employee’s FMLA leave. This should determine whether they can return. They can be considered to have resigned if the employee chooses not to return to work, and if they can’t prove that the circumstances were beyond their control. 

Where to Find Help

The FMLA is complicated, with many qualifications and restrictions, and the law can change at any time with the ongoing COVID pandemic. You can refer to the Employer’s Guide to the Family and Medical Leave Act for more details, and check with an FMLA attorney for specific guidance.