Employees Exhausted Leave Options … Now What?

(*These incidents are based on real cases. Names and other details have been changed.)

When employees have exhausted their state, federal, and company-provided leave options, showing compassion and understanding is appreciated. Individuals, and businesses are going through difficult times; being flexible and collaborative with their employees can go a long way.

Example Situation

Diane is the HR Director at Danny’s Restaurant, an establishment subject to the FFCRA Emergency Paid Sick Leave and Expanded Family and Medical Leave provisions. Since the FFCRA went into effect on April 1, 2020, several employees are taking leave for various reasons, due to having to care for family members under isolation orders or being sick themselves. Some due to having to care for their child because the child’s school or place of care was closing. Diane’s employees have exhausted leave from the FFCRA – or are about to – as well as their company-provided sick leave and vacation. The needs of employees to continuing to take leave due to COVID-19 will not end just because the employees have exhausted leave options. What options are available to Diane and her employees?

What to do?

If leave is required to care for a family member who is ill or their child whose school is closed, employers can extend a temporary, unpaid personal leave of absence to the employee. For example, Diane could extend a 4-week unpaid leave of absence to an employee. After 3-weeks, have a conversation with the employee to reevaluate whether this needs to be extended.

If an employer cannot commit to holding the employee’s position open during this initial 4-week period of leave, the employee should be advised their position may be filled. This should be clear from the beginning, based on the needs of the business. If the employer can hold the position open but is not able to if the leave is extended, then this should be clearly communicated to the employee when discussing an extension. 

Note if your company has a personal leave of absence policy, then you should follow the terms of your policy. As always, employers should implement the above in a consistent, nondiscriminatory manner. If you can extend a personal leave of absence to one employee but not another, you should have documentation. These are legitimate business reasons for treating your employees differently.

 The situation is different if the employee themselves contracts COVID-19 and does not have any available leave options. The EEOC has declined to definitively state COVID-19 is a disability under the ADA, only stating back in March “it is unclear at this time.” This is likely because many people who have COVID-19 are asymptomatic and so no major life activity is limited. This as defined under the ADA. However, for others COVID-19 severely limits major life activities and has lasting effects on the body.

Given the range of ways COVID-19 affects individuals, the best HR practice would be to treat COVID-19 as a disability. Engage in the interactive process with the employee. A reasonable accommodation under the ADA is an unpaid leave of absence. 

See our COVID-19 Resources page for some guidance or contact us for more information.

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