What You Need to Know About FMLA in CA During the COVID-19 Pandemic

Posted on December 12, 2020 | By Omid Nosrati | Firm News,Wage & Hour Laws,Workers Compensation

As the COVID-19 pandemic continues to influence the industries within our country, it has also greatly affected the workforce. When employees become infected with the virus or need to stay home for sick family members, they are faced with tough decisions regarding their employment. Generating income must be balanced with maintaining the health and safety of their family members, as well as the community at large. Many people worry they could lose their job due to COVID-related issues, causing even more anxiety.

If you have found yourself in this difficult situation, taking Family Medical Leave Act (FMLA) is a valuable option to explore.

FMLA Coverage for Employers

To apply for FMLA, first determine if your employer is covered. The FMLA covers the following industries:

• Private-sector employers with 50 or more employers working a minimum of 20 work weeks, consecutive or nonconsecutive, during the current calendar year, or the previous calendar year.
• Local educational facilities, including public and private elementary and secondary schools, and public school boards, regardless of the number of employees.
• Public agencies, such as the federal, state, or local government.

Current Eligibility Requirements for Employees

You are considered qualified for FMLA leave if your employer is covered and you meet all of the following conditions:

• You have worked for this employer for a minimum of 12 months
• You have worked a minimum of 1,250 hours during the previous 12 months, and
• You work in a location where at least 50 employees work within 75 miles of the worksite

Special service hour requirements exist for employees of airline flight crews or those in the National Guard or Reserve military services.

If you are sick from a serious health condition, such as COVID-19, to the point of being incapacitated or are providing essential care for a family member, you may be entitled to up to 12 weeks of unpaid, job-protected leave for specified medical or family reasons. While on FMLA leave, you are entitled to the same continuing group health insurance coverage that you would have received if you were employed during the period of leave.

Taking leave for the purpose of avoiding COVID-19 exposure is not protected under the FMLA. Unfortunately, if you are healthy and caring for healthy children dismissed from school or childcare, your employer is not required by federal law to provide FMLA leave.

Employers are not required to provide paid leave to any employees whose absence from work is due to illness from COVID-19, exposure to someone carrying it, or the care of a sick family member. However, there are some circumstances under which federal contractors may be required to provide paid leave, but state and local laws include different requirements.

Employer Requirements for FMLA Leave

If you are seeking FMLA leave, your employer may have a certain set of requirements, both for taking leave and returning to work. The Americans with Disabilities Act, or ADA, states that during a pandemic health crisis, an employer may require a doctor’s note or medical examination to verify your illness, especially if the current medical condition would impair your ability to perform the essential functions of your job or pose a threat to workplace safety, defined as significant risk of considerable harm that reasonable accommodation could not reduce or eliminate.

If you are taking FMLA leave to care for a sick family member, such as a spouse, child, or parent, you may be required to have a doctor perform a medical exam on them and provide a note to support your need for leave.

When your leave is over, your employer is legally obligated to reinstate you into the same job you held previously or an equivalent position. However, if certain actions were taken during your leave that would have affected you if you were working, such as elimination of a shift or decreased overtime, you are not entitled to return to your original shift or overtime hours. If your employer must lay off employees, they must not discriminate against you because you have applied for or used FMLA leave.

Further Leave Coverage for CA Residents

In September, CA Governor Gavin Newson signed SB1383, legislation that expands medical and family leave of absence requirements. The same eligibility requirements for working hours, location, and length of employment exist for the California Family Rights Act (CFRA) as for the FMLA. This new law will be effective as of January 1, 2021 and includes:

• Extended eligibility threshold with the CFRA applying to smaller employers, those employing 5 or more, rather than 50
• Elimination of location requirement in which employees must work within 75 miles of the worksite
• Expanded definition of “family member” with a serious health condition will include sibling, grandparent, and grandchild

Contact Nosrati Law Today

If you are sick with COVID-19 or caring for sick family members and have questions about your eligibility for FMLA or CFRA, please contact our expert FMLA attorneys today. With over 20 years of experience handling employee claims in California, Nosrati Law has the knowledge, skill, and resources to help you receive maximum compensation. Call us at (310) 736-2084 for a free consultation with our legal staff at no obligation.