DOL Issues Additional Clarification on FMLA, FFCRA, FLSA in COVID-19 Context

DMEC StaffLegislative Updates

DOL Issues Additional Clarification on FMLA, FFCRA, FLSA in COVID-19 Context

Sheri L. Giger

Jackson Lewis P.C.

The U.S. Department of Labor (DOL) recently issued additional clarification on its FAQs (see questions 12-13), and provided guidance regarding the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA) in the context of the COVID-19 pandemic. Some highlights are included below.

Telemedicine Visits Are “In-Person” Visits with a Healthcare Provider under the FMLA

Telemedicine visits (those medical appointments that are conducted by remote video conference via computers or mobile devices) will be considered as “in-person” visits with a healthcare provider under the FMLA. However, to be considered an “in-person” visit, the telemedicine appointment must:

  • include an examination, evaluation, or treatment by a healthcare provider;
  • be performed by video conference; and
  • be permitted and accepted by state licensing authorities.

The DOL reasons that this approach serves the public’s interest because healthcare facilities and clinicians are under advisories to prioritize urgent and emergency visits and to preserve personal protective equipment and patient-care supplies. However, the DOL notes that telemedicine visits will be considered “in-person” visits only until Dec. 31, 2020.

COVID-19 Tests May be Required Before Returning to Work From FMLA Leave

The DOL also provides updated guidance on whether an employer can require employees returning from FMLA leave to get a COVID-19 test before returning to work. The DOL explains that the FMLA does not prohibit an employer’s return-to-work COVID-19 testing requirement, as long as the testing requirement applies to all employees returning from any type of leave, whether FMLA or non-FMLA. Note, however, that an employer should also consider any applicable state law or order that may impose restrictions on when COVID-19 testing is permitted and what types of COVID-19 tests are permitted.

DOL Provides Insights into Reopening and Return to Work Scenarios under the FFCRA

The DOL also added additional questions and answers to the FAQs (see questions 94-97) on the FFCRA. In these new FAQs, the DOL explains:

  • When an employee returns to work from FFCRA leave and there are lingering concerns regarding whether the employee is returning to work too soon and could potentially expose others to COVID-19, an employer may:
    • consider temporarily reinstating the employee to an equivalent position with less co-worker interaction or require the employee to telework; and
    • require an employee comply with job requirements that are unrelated to being out on FFCRA, such as a general requirement that any employee be tested for COVID-19, or telework, if the employee has interacted with a COVID-infected person. Such a requirement must apply to all employees.
    • The DOL cautions that an employer may not require an employee to telework or be tested for COVID-19 simply because the employee took FFCRA leave.
  • The FFCRA emergency paid sick leave is limited to a total of 80 hours, even if an employee took FFCRA before being furloughed and is now returning to work from furlough. Any balance under 80 hours of emergency paid sick leave can be taken through Dec. 31, 2020 for qualifying reasons.
  • If an employee took expanded FMLA prior to a furlough, an employee is still entitled to any balance of FMLA leave under 12 weeks upon returning to work after a furlough.
  • An employer may not extend an employee’s furlough because the employee will need to take FFCRA leave to care for the employee’s child upon return to work. The DOL reminds employers that they may not discriminate or retaliate against employees (including prospective employees) for exercising or attempting to exercise rights under the FFCRA.

Employers are encouraged to continue to check for updates on DOL FAQs and guidance, which is continually evolving during this COVID-19 pandemic.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***