Employers face one key challenge in their efforts to ensure compliance with the Family and Medical Leave Act (FMLA) as well as the Americans with Disabilities Act (ADA) as the coronavirus pandemic extends into 2021, Jeff Nowak, shareholder at Littler Mendelson, and Matt Morris, vice president at FMLASource, said in a Dec. 9 webinar.

"There's virtually no case law in this area yet with respect to COVID-19," said Nowak.

Still, those in charge of compliance can take a couple of hints from the guidance provided by federal agencies as well as the small number of court cases that have touched on issues related to COVID-19, the presenters said. The webinar addressed a series of common FMLA and ADA questions employers have encountered this year.

Does an employee's positive COVID-19 test trigger FMLA leave?

A positive test "almost surely" begins a period of FMLA leave, Nowak said, particularly if any sort of inpatient care with a connected period of incapacity or subsequent treatment is involved. Short of that, a period of incapacity of more than three consecutive days with continuing treatment also triggers the law.

If an employee is not incapacitated, or is asymptomatic, the employer needs to defer to the employee's medical certification. If the employee fails or refuses to provide certification, employers may want to defer to guidelines from the Centers for Disease Control and Prevention (CDC). The agency advises a quarantine away from work of at least 10 days without testing. "That period is FMLA leave," Nowak said.

If such an employee can telework, it could be that FMLA leave does not apply, he noted. But employers do need to ensure that if FMLA is offered to an employee who voluntarily decides to work from home, they document the situation accordingly.

How does a condition such as asthma factor into COVID-19 policies?

An employee who has asthma may come to her employer and state that she and her doctor are worried about respiratory issues due to contracting COVID-19, or that she is concerned that her medical condition will be exacerbated if she contracts COVID-19.

Nowak said this is a common scenario for employers, with many different variations. The CDC, he noted, provides a non-exhaustive list of conditions that are likely to be worsened if a person is infected with COVID-19. Employers might believe that because an employee with such a condition is not presently incapacitated, the employee is not guaranteed FMLA leave.

Case law cuts both ways on the question of whether an employee can take FMLA leave if she is worried about becoming incapacitated from working. Nowak, however, pointed to a 2014 federal court case, Santiago v. Connecticut Dept. of Transportation, in which an employee said he could not work overtime during winter months due to cluster headaches.

The court not only denied summary judgment to the employer, but it also cited in its ruling an example — taken straight from the FMLA's regs — of an employee who has asthma and who has been advised by a healthcare provider to stay home from work when the pollen count exceeds a certain level. The court then applied this example to mean that overtime, like pollen, could exacerbate Santiago's medical condition and that FMLA therefore applied.

"This is where I make the jump to COVID-19," Nowak said. "I'm concerned that Santiago is the case that employees are going to cite in their FMLA case against you." An employee could argue that her medical condition could be exacerbated by COVID-19 and result in her incapacity from working. Not every court may buy that argument, Nowak noted, but it could still be a risk for the employer.

If an employee identifies a medical condition and connects that condition to her inability to work, employers should treat the situation as a potential FMLA situation, Nowak said. From there, the employer can send out the appropriate notice and certification.

Should HR renew remote work requests for employees with underlying conditions?

Nowak continued with the asthma example, providing the example of a manager, Gabe, who has asthma but who is able to perform his job from home. Initially, Gabe is approved for four weeks of telework, but at the end of that period, Gabe asks for the telework arrangement to continue. Should HR deny the request?

This type of example is central to a 2020 federal court case, Peeples v. Clinical Support Options, Inc. The case should give employers "a little pause," Nowak said. The employer in Peeples provided the manager with personal protective equipment, arguing that it needed managers to return to the workplace. But the court held that the employer did not perform an individualized assessment, and it entered an injunction requiring the manager to be able to work from home during the pandemic.

The fact that the employer's provision of protective equipment was not considered to be part of an individualized assessment is a "big deal," Morris said. "Even if we as employers do everything we can, given the nature of this illness, it may not completely ameliorate the risk to that employee."

U.S. Equal Employment Opportunity Commission guidance stipulates that employers are not required to provide telework as a reasonable accommodation under the ADA if there is no disability-related limitation that requires teleworking. However, the guidance also provides that a temporary telework experience could be relevant to the consideration of a renewed request. Similarly, the court in Peeples stated that such a period of remote work could be relevant in the sense that it is a trial period to determine whether remote work might be a reasonable accommodation, Morris said.

What if an employee has a generalized fear of returning to work?

In the event that an employee who does not have a medical condition says she is uncomfortable returning to work due to COVID-19, employers should make it clear that they are operating a safe workplace in accordance with state and local safety guidelines, Morris said. Employers may also note what specific measures they have taken to ensure workplace safety.

But employers also need to be careful, particularly if the employee in question is someone whom they know has dealt with anxiety or stress. "Depression and anxiety is through the roof during 2020," Morris said, citing the results of a recent Boston University study showing that 1 in 4 U.S. adults experienced depression symptoms this year. "You have to think about the environment you're in and whether or not that person's fear that they've described actually is a serious health condition or a disability."

If so, that may trigger an employer's duty to accommodate the employee's serious health condition or disability under the ADA in addition to potential FMLA leave.

Even precautions such as distributing N95 masks and socially distanced workspaces may not provide an individualized response to an employee with a serious health condition, said Morris; "That is not necessarily an accommodation you are providing to that employee." Instead, employers can have a discussion with the employee to address what the employee might need or want. "If it's ADA, it doesn't necessarily mean you have to grant it … but you do have to have that discussion."