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Employment Law: Legislative COVID-19 Response

Best Ohio FMLA Attorney Answer: Can I take protected leave to care for a relative with Coronavirus? Who can I take protected leave to care for during the COVID-19 outbreak? Do I have to attend work if I don’t feel comfortable during a pandemic? Can I be fired for taking FMLA leave to care for a family member who has Coronavirus? Employment Law: Legislative COVID-19 Response

In light of the recent global epidemic,
COVID-19 or Coronavirus, the working world seems to have come to a screeching
halt. The shutdown of non-essential businesses has occurred in other countries
affected by the outbreak, and it could happen at anytime in the United States
as well. Until such a shutdown occurs, however, it is important to be informed
and understand what your rights as an employee are. As we have blogged about on
numerous occasions, the Family and Medical Leave Act (“FMLA”), gives employees an option for when they
themselves have a serious medical condition or emergency, or if a close
relative has a serious medical condition or emergency. For more information
about the FMLA in general, see what the top Ohio employment law attorneys have to say. (See:
FMLA Retaliation Tips – Call
The Right Attorney
; Can I Be Fired For Asking About
FMLA? I Need The Best FMLA Lawyer Help In Ohio!
; and What Hours Count Towards My
FMLA Eligibility? Best FMLA Attorney Reply!
)

Generally, the FMLA provides that employees
are eligible to take medical leave for themselves or a family member if they
have worked for their employer for at least 12 months, at least 1,250 hours
over the past 12 months, and work at a location where the company employs 50 or
more employees within a 75-mile radius. Once an employee has met these
requirements, they are eligible for up to 12 weeks of unpaid leave. This leave
can be taken all at once or it can be divided up to be taken intermittently.
Perhaps the most important part of the FMLA is that employers cannot take
adverse employment actions against employees who utilize FMLA leave. An adverse
employment action includes: “actions like firing the employee, failing to
promote, reassignment with significantly different responsibilities, a material
loss of benefits, suspensions, and other indices unique to a particular
situation.” Smith v. City of Salem, Ohio, 378 F.3d 566, 575-76 (6th
Cir. 2004)
. For more
specific information about adverse employment action, check out this blog written by the top Ohio employment attorneys.

So, it’s clear what the prerequisites are for
taking FMLA protected leave, but an important and frequently asked question is
“who can I take FMLA leave to care for?” The FMLA is very explicit about this
and the courts have strictly adhered to the language of the FMLA. The FMLA
provides:

“Entitlement to leave – Subject to section 103, an eligible
employee shall be entitled to a total of 12 workweeks of leave during any
12-month period for one or more of the following: (A) Because of the birth of a
son or daughter of the employee in order to care for such son or daughter. (B)
Because of the placement of a son or daughter with the employee for adoption or
foster care. (C) In order to care for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son, daughter, or parent has a serious
health condition. (D) Because of a serious health condition that makes the
employee unable to perform the functions of the position of such employee. (E)
Because of any qualifying exigency (as the Secretary shall, by regulation,
determine) arising out of the fact that the spouse, or a son, daughter, or
parent of the employee is on covered active duty (or has been notified of an
impending call or order to covered active duty) in the Armed Forces.”

The Act generally limits FMLA leave to
immediate family members such as your spouse, children, or parents with a few
exceptions. But the recent outbreak of Coronavirus has and will continue to
alter the normal situations in which an employee will need to take FMLA leave.
It is up to the members of Congress to create sensible legislation in response
to this crisis.

The House of Representatives voted to pass H.R. 6201: Families First
Coronavirus Response Act
on
March 14, 2020 and later passed a final amended version on March 17, 2020. Subsequently,
the Senate is set to pass the bill as well in the days following the House’s
passing. This is a general bill that mainly covers financial aspects of
employment. The most relevant section of this bill is cited as the “Emergency
Family and Medical Leave Expansion Act.” Eligibility for leave has been amended
from its original 12 month, 1,250 hours, and 50 or more employees in 75-mile
radius requirements to cover any individuals employed by a covered employer for
at least 30 days before the first day of leave and as long as there are fewer
than 500 employees. The main difference between the amended FMLA and the
original, however, is that two of the 12 weeks that were previously unpaid, may
now be taken as paid leave. To qualify for the paid leave under the new act,
the employee must:

Employment Law: Legislative COVID-19 Response

“(1)
be complying with a requirement or recommendation to quarantine due to
coronavirus exposure or symptoms, and cannot work from home; (2) is caring for
an at-risk family member who is quarantining; or (3) is caring for the
employee’s child if the child’s school or place of care has been closed due to
public heath emergency.” – The National Law Review

In addition to the above requirements, the
employee seeking to take paid leave must be deemed unable to work or telework
(work remotely from home) due to a tightly-defined coronavirus-related absence.
“Tightly-defined” coronavirus-related absences refer to either the employee being
exposed to coronavirus or a close family member of the employee as listed in
the amended act being exposed to coronavirus.

In this global crisis, a rare showing of
bipartisan cooperation has created a policy that protects a lot of employees
who will end up being affected by this virus. Namely through the use of the
paid leave expansion, employees will be given fair treatment should they
contract the virus or require time off to care for a loved one who has
contracted the virus. There is a caveat to this however. The first 14 days of
the leave may be unpaid leave. An employee can opt to use sick time or paid
time off during the first 14 days, but after 14 days, and employer is required
to pay employees utilizing this leave no less than two-thirds of their regular
rate for the normal number of hours the employee would otherwise be working.

H.R. 6201 also amends the definition of
“close family member” during this public health emergency. Normally, the FMLA
lists family members covered under the act as:

“Entitlement to leave – Subject to section 103, an eligible
employee shall be entitled to a total of 12 workweeks of leave during any
12-month period for one or more of the following: (A) Because of the birth of a
son or daughter of the employee in order to care for such son or daughter. (B)
Because of the placement of a son or daughter with the employee for adoption or
foster care. (C) In order to care for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son, daughter, or parent has a serious
health condition. (D) Because of a serious health condition that makes the
employee unable to perform the functions of the position of such employee. (E)
Because of any qualifying exigency (as the Secretary shall, by regulation,
determine) arising out of the fact that the spouse, or a son, daughter, or
parent of the employee is on covered active duty (or has been notified of an
impending call or order to covered active duty) in the Armed Forces.”

Under H.R. 6201, the term “close family
member” is expanded to cover leave taken to care for in-laws, domestic
partners, grandparents, and siblings who have been exposed to Coronavirus. This
is normally unheard of as courts have generally refused to expand FMLA leave to
cover employees taking time to care for such individuals:

“Various
courts have concluded that an employee is not entitled to FMLA coverage to care
for family members who are not specifically mentioned in the FMLA…Based upon
these cases and the FMLA statute itself, the undersigned recommends that the
Court find that Plaintiff has not and cannot plead a cognizable cause of action
under the FMLA because she was not legally entitled to FMLA benefits in order
to care for her brother, a family member not specified in the statute.” – O’Hara v. GBS Corp. 2013 U.S. Dist. (N.D. Ohio Mar. 13, 2013)

The decision in O’Hara is effectively
irrelevant for cases where an employee seeks to take time off work to care for
a family member who has been exposed to Coronavirus. Coronavirus is creating a
state of global panic and it is affecting the workplace in a manner unlike
anything that has been seen in recent memory. It is important for employees to
stay informed about their rights and for employers to be flexible and
understanding when dealing with employees who are directly impacted by the
virus. For more information about how the Coronavirus has effected the
workplace, check out what the top Ohio employment law lawyers
had to say in “Coronavirus: What Will Happen At Work?

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Employment Law: Legislative COVID-19 Response

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do about work if I get the Coronavirus,” “My boss sent everyone home from work”
or “I was fired because of the Coronavirus”, it would be best for to contact
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