Thanks to those who attended my webinar last week with Matt Morris on “Navigating Difficult FMLA and ADA Issues in the Middle of a Pandemic.” You still can access the recording here (a short registration is required), and the presentation PowerPoint slides can be downloaded here (pdf).

To the nearly 11,000 people who registered for the webinar, thank you. Among other things, you were rewarded with photos of Golden Retriever puppies, beautiful owls, dancing dads and a father/son light saber duel!

As for the FMLA and ADA, we covered:

  • Is an employee who tests positive for COVID-19 covered by the FMLA?  Almost surely yes, we agreed, whether it is through inpatient care, incapacity plus treatment, or based simply on observing the CDC’s quarantine guidelines.
  • Does an employee’s generalized fear of COVID-19 trigger FMLA? Or ADA?  The Department of Labor noted that simple, generalized fear is not covered by FMLA, but we discussed during our webinar how underlying anxiety and other mental health conditions might transform these situations into FMLA scenarios.  We also warned of the potential employee relations issues involved with denying leave in these situations.
  • Can an employee take FMLA or extended ADA leave when they have an underlying health condition (or need to care for a family member) that may be worsened by COVID-19?  We spent a ton of time on this, because this particular question has plagued employers.  Through the use of case law and review of the FMLA regulations, we outlined the risks in denying FMLA leave to these individuals.  We also outlined the analysis if your employee is seeking extended or indefinite ADA leave in these situations, focusing on the kinds of questions you should ask your employees and managers to determine whether there is an obligation to provide additional leave.  In doing so, we analyzed the factors to consider to establish that an extended leave is an undue hardship.
  • Finally, we provided extensive guidance on handling employee work-from-home requests during the pandemic, focusing closely on the only meaningful court decision issued thus far during the pandemic: Peeples v. Clinical Support Options, which reminds us of the critical obligation to engage our employees in an interactive process to determine on an individualized basis whether telecommuting is an appropriate accommodation.

Want some insight into the ins and outs of these common, difficult pandemic issues?  Access the recording here!

Of course, we ended our webinar with a holiday jingle that reflected the mood of the day: “I’m Dreaming of a COVID-Free Christmas” sung to the tune of “White Christmas” by the Bing Crosby (a version which you can listen to or skip on the recording!):

I’m Dreaming of a COVID-Free Christmas
Just like the one we had last year
Where the only FMLA Temptation, is an Exotic Beach Vacation
Caught on TikTok, to ruin a Career

* * *

I’m Dreaming of a COVID-Free Christmas
For every Employee I supervise
Where My Employees complain of Migraines
Or good ‘ol chronic back pains
These classic FMLA excuses, I need not incentivize

* * *

I’m Dreaming of a COVID-Free Christmas
With every telework request I receive
But what I hope isn’t part of the ask
Are unlimited breaks and a stand up desk

 

We leave you, as we did during our webinar: There will be life beyond this pandemic, and it will be wonderful! 

I wish you a peaceful, healthy and happy holiday season!