Leaves Have Fallen Leaves Have Expired

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 4, 2020

How appropriate that during this season, we have received several questions from employers about employees who have a COVID-related absence after having exhausted traditional FMLA and/or the Emergency FMLA or Emergency Paid Sick Leave authorized by the Families First Coronavirus Response Act. Our recommendation is that employers evaluate on an individualized basis how each of these situations should be handled. It is not strictly necessary to treat everyone the same. Assume that in a department with a limited number of employees, you have accommodated an employee who has no leave remaining by permitting that employee to remain on an extended leave for an agreed-on period. Now, another employee in the same department has made the same request. However, you need for that work to be done and you cannot permit the second employee to go on leave. You have the right to deny leave to the second employee based upon the needs of the business. In situations where the second employee is of a different protected class than the first employee, has engaged in protected conduct, and/or seeks leave related to a pregnancy- or disability-related limitation, the analysis needs to be especially thorough and communication proactively crafted.

Also, an extended leave does not have to be either for the duration the employee requests or indefinitely. An employer may tell an employee that it will try to accommodate the leave for as long as possible but if the employer can no longer accommodate the leave, the employee needs to be notified that the employer will move forward with filling the position. So, in the example above with two employees needing leave, an employer could also or alternatively recall the first employee, as long as its reasons were based on business justification, and not unlawful preference.

As in all matters of employee relations, communication is key. Whether you are granting an extended leave, a part-time schedule, or a work from home arrangement, be sure you have communicated clearly to the employee about entitlements and expectations from the alteration. Where applicable, it’s important to be specific that such alternative working or leave arrangements are specific to changed business circumstances and/or involve modifications to essential job functions and thus are necessarily limited. For those employees who are approaching exhaustion of available FMLA, EFMLA, EPSL, and/or employer-provided leaves, communicate clearly about that well before the time of exhaustion, even if you will be extending the leave so that, should circumstances change, you and the employee are on the same page about where the employee stands regarding available leave under local, state, or federal law and employer policy.