Leave No Leave Behind: Could Returning Employees Be Entitled to More Leave?

Written By: Gus Lazares

It seems hard to believe, but as America returns to work, many employees will start reaching the end of their emergency benefits under the Families First Coronavirus Response Act (FFCRA).  While returning to work is a welcome development, employers need to be prepared to navigate their employees’ transition back from emergency leave under two sections of the FFCRA in particular, the Emergency Paid Sick Leave Act (PSL) and Emergency Family Medical and Leave Expansion Act (EFMLA).  Employees could be entitled to additional leave under other laws before returning to work. Buckle up! You’re in for a ride.

When employees return from leave under the PSL (two weeks of paid leave), EFMLA (12 weeks of partially paid leave), or both, the employee may still be entitled to additional leave under the “regular” FMLA, ADA, or both if they continue to have health issues.  Under the FMLA, if the employee or the employee’s family member has a serious health condition as defined in the FMLA (which may include COVID-19), they are able to use any FMLA time up to the combined 12 weeks.  Remember that an eligible employee gets only a combined maximum of 12 weeks of leave between the EFMLA and the FMLA in a 12-month period – no double dipping! It is also important to keep in mind that companies with fewer than 50 employees are covered under the EFMLA but are NOT covered under “regular” FMLA. Employers with more than 500 employees are NOT covered under the EMFLA but are covered under “regular” FMLA. Exhausted yet?

If an employee with a disability has exhausted all available PSL time, that employee may still be entitled to additional leave as a “reasonable accommodation” for the disability.  In some cases a reasonable accommodation could simply be allowing continued telework post-reopening, but in other cases, it may be necessary to offer unpaid leave for a time under the ADA to see if the individual’s particular risks associated with COVID-19 subside.  Employers should be particularly attuned to the ADA, as the EEOC reports seeing increases in ADA claims relative to other claims during the pandemic.

If there are no PSL, EFMLEA, FMLA or ADA obligations, don’t forget to check your employee handbook. Many companies have leave of absence policies that apply when laws do not.

But what if an employee has exhausted all government and employer-provided leave but still needs more time?  This may be a time for employers to get creative about offering additional leave in order to keep talented employees.  If a high-performer needs an additional week or two before coming back to work, employers should seriously consider finding a way to make it happen.  When granting any type of out-of-the-ordinary leave, however, employers should make sure to consider the potential for other employees to allege discrimination if they are not given the same treatment.

These issues are complicated and evolving, but employers do not have to tackle them alone!  The experienced employment lawyers at Graydon are here to help your business navigate its way back from the crisis.  Be sure to check out our COVID-19 Task Force for additional information.