The FMLA and pre-op quarantine periods
Key to remember: Doctors are requiring patients (employees) to self-quarantine for a period of time before surgery or procedures. This period would likely be protected by the FMLA.
Applies to: All public employers, and private employers with 50 or more employees.
Impact to customers: This type of detail can help employers avoid an FMLA claim.
Possible impact to JJK products/services: Since the high level of impact of the virus is temporary, this is only a news item.
Every now and then, employers are affected by the actions of organizations or industries they would not otherwise suspect. Sure, lawmakers and employment law-enforcing agencies commonly impact employers. Health care providers can when it comes to employee leave for medical conditions or workers’ compensation. Now, since health care providers have again begun to perform medical procedures and surgeries beyond caring for those struck with COVID-19, they have rightfully taken many precautions. One of those precautions is testing patients and sending them home to self-quarantine for at least 72 hours before the procedure or surgery.
This makes sense from a health care perspective. Many of those patients, however, are employees. Therefore, employers are left wondering whether the extra leave needed for that pre-op quarantine is protected.
Employers might think that such leave would fall under the Families First Coronavirus Response Act (FFCRA), because one of the qualifying reasons is when an employee is medically advised to self-quarantine. For purposes of this particular reason (known as FFCRA #2 for employment law nerds), the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID–19, may have COVID–19, or is particularly vulnerable to COVID–19. The employee would also need to be unable to work from home.
If that is not the case, the employee would not be entitled to the FFCRA leave for reason #2. No other reason would apply under the FFCRA, either.
Assuming the reason for the absence (the medical procedure or surgery) qualifies for regular FMLA leave, the reason for the additional absence, would likely be seen as being so intertwined for the original reason it, would likely be protected by the FMLA. This is fairly logical, as the employee could not get the procedure without the pre-op quarantine.
This is similar to a situation in which an employee needs to spend a day driving to a health care facility to obtain treatment. The day spent driving is so interconnected with the treatment, that it’s all part of the treatment.
Remember the good old days from ten months ago, when the FMLA was the challenge regarding employee leave? Someday, in the not-too-distant future, that will be the case again.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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