Tony, an employee for a medical clinic, tested positive for COVID-19. At the advice of his physician, Tony is required to quarantine for 14 days. Because he is completely asymptomatic, however, Tony scheduled no visit with his doctor, and no regimen of continuing treatment was prescribed.

Assuming Tony cannot perform any work from home, are Tony’s absences from work during the 14-day quarantine covered by the FMLA?

Your FMLA instincts are screaming out, “Come on, Jeff! There’s no continuing treatment. Tony never went to the doctor, no medicine was prescribed, and he otherwise has no symptoms. This isn’t FMLA leave!”

As the story goes, the medical clinic needed Tony back at work. So, when he was not able to return to work after six days (after reminding his employer of his advised quarantine), the medical practice terminated his employment.  He filed an FMLA lawsuit a very short time later.

In seeking to dismiss Tony’s FMLA claims, the employer argued that Tony failed to request FMLA leave and, in any event, didn’t have a serious health condition requiring FMLA leave.

The Ruling

Said the Court: Not. So. Fast.

The court refused to dismiss Tony’s FMLA claims, summing up the situation quite simply this way:

Plaintiff has alleged a request for leave. Defendants did not provide an explanation of any deficiencies in Plaintiff’s request, or allow an opportunity to cure any such deficiencies, as the FMLA regulations require. Plaintiff was fired the day after his request. Therefore, Plaintiff has adequately pled his claims of interference and retaliation under the FMLA

Check out the case here: Payne v. Woods Services Medical Practice Group

Insights for Employers

Let’s not be fooled. If an employee tests positive for COVID-19 — and even if they are asymptomatic — you should recognize this situation as a potential need for FMLA leave. It doesn’t mean the leave of absence is FMLA leave. Ultimately, the medical certification you obtain from the employee will guide you as to whether you should designate as FMLA leave.

So two steps:

  1. When the employee tests positive and must quarantine, even if asymptomatic, send the Notice of Eligibility and medical certification to be completed by the health care provider.
  2. If the employee returns a complete and sufficient medical certification advising of the need for leave from work for the quarantine period, it seems to me that the doctor’s directive along with CDC Guidance (requiring the requisite quarantine period) provide the necessary basis to designate the absence as FMLA leave.

If you fail to recognize these situations as potential FMLA leave, I worry that you fall prey to an FMLA claim just like this medical clinic did.

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Photo of Jeff Nowak Jeff Nowak

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all…

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all things FMLA!