In a pending Pennsylvania case (Payne v. Woods Services, Inc.), the trial court hints that the FMLA may apply in the case of an employee who is asymptomatic but tests positive for COVID-19 and is unable to telework. While the case survived a motion to dismiss, the plaintiff is a long way from prevailing, so we are waiting with bated breath for the final holding (which may not happen for some time)!
In our recent FMLA webcast, we shared the opinion that an employee who tested positive for COVID-19, but was asymptomatic, would not likely have a serious health condition as is required for leave under the federal Family and Medical Leave Act (FMLA). There is no question that an asymptomatic COVID-19 positive employee who is able to telework during the quarantine period would not be eligible to take FMLA leave. So, it seems inconsistent that an employee who cannot telework would be considered to have a serious health condition simply because telework is not an option. This type of situation apepars to be more appropriately covered under laws such as the Families First Coronavirus Response Act’s (FFCRA) Emergency Paid Sick Leave or a state or local COVID-19 emergency paid sick leave law, not the FMLA. In any event, there is currently no guidance from the Department of Labor on this specific issue, so employers are left to guess whether the FMLA applies.
Specific facts in Payne v. Woods Services, Inc.
Before panic sets in, let’s discuss the details of the case currently under review. Anthony Payne worked as a residential counselor for a company providing integrated healthcare services and advocacy for individuals with disabilities. Near the beginning of the pandemic, Payne worked with several patients who tested positive for COVID-19 on April 1, 2020. Payne’s doctor advised him to get tested and quarantine for 14 days. Payne promptly notified his employer of his physician’s directive to quarantine. On April 6, Payne was tested and learned of his positive COVID-19 result the following day. The nurse in his physician’s office directed Payne to quarantine for 14 days from the date of testing. Just six days later, Payne’s employer notified him he was “cleared” and should return to work. Payne declined on the basis that he had not completed his quarantine. His employer responded that if he did not return to work his absence would be a “call out” – an unexcused absence. Payne reiterated the advice of the nurse to quarantine and even referenced the CDC guidance. Payne did not return to work as directed and his employer terminated him.
Payne subsequently filed a 13-count suit against his employer which includes claims of interference and retaliation in violation of the FMLA as well as claims of interference and retaliation in violation of the FFCRA. His employer filed a motion to dismiss the case arguing that Payne never alleged a serious health condition (due to the fact that he was asymptomatic), so the FMLA didn’t apply. Payne argued that his employer should have provided him with notice of the “deficiency” in his request for leave to quarantine and allowed him the chance to cure the deficiency. The court agreed and denied the motion to dismiss meaning that the FMLA claims would later be decided on their merits.
Lockton comment: Keep in mind that this case is in its earliest stage. Surviving a motion to dismiss is not a victory on the merits – the case is just beginning. Once the parties have explored the facts, additional motions may be filed which could change the result to a decision in favor of the employer on the FMLA claims.
FMLA regulations require an employee to “state a qualifying reason for the needed leave” to allow an employer to determine whether the leave qualifies. If the employer isn’t provided with enough information about the reason for the leave, the employer is obligated to inquire further and may request the employee provide a medical certification issued by a healthcare provider. In cases involving ambiguities in the actual FMLA certification, courts have held that an employee should be given an opportunity to “cure” the deficiencies of a certification. While not exactly the same situation, the court in Payne v. Woods Services, Inc. equated Payne’s verbal request for quarantine leave while asymptomatic to a medical certification completed by a healthcare provider, thus affording him an opportunity to “cure” the information provided to his employer before leave was denied.
Lockton comment: It is certainly noteworthy in the case that the FFCRA claims survived the motion to dismiss as well. The trial court concluded that Payne, as a residential counselor, was not a healthcare provider and not exempt from the provisions of the FFCRA. Had his employer provided him with FFCRA leave, he would not have missed work and subsequently been terminated. It seems reasonable to conclude that Payne would not have filed suit claiming FMLA interference and retaliation if his employer placed him on FFCRA leave. Again, we must await the outcome of the case.
What is next for employers with asymptomatic, COVID-19-positive employees unable to telework?
Keep in mind that this trial court decision is not binding authority. While it should not be ignored, there is no reason at this point to be rattled by the court’s analysis. For FMLA purposes, a serious health condition entitling an employee to FMLA leave means “an illness, injury, impairment or physical or mental condition” involving either inpatient care or continuing treatment by a healthcare provider. Payne did not have any inpatient care, so the question is whether he was under “continuing treatment.” To meet the standard of “continuing treatment,” there must be treatment by a healthcare provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the healthcare provider. Absent any guidance or final court decisions, it seems reasonable for an employer to deny FMLA leave to an asymptomatic employee with COVID-19 as it is unlikely that the employee meets the standard of undergoing a “regimen of continuing treatment” under his physician’s supervision as is required to meet the definition of serious health condition.
Lockton comment: Based on the Payne v. Woods Services, Inc. case, if an employee (i) tests positive for COVID-19, (ii) is asymptomatic but unable to work from home, (iii) has no available leave option and (iv) termination is being considered, a better practice is to send the FMLA Notice of Eligibility rather than immediately terminate the employee. Before taking action, analyze the certification to assess whether the condition qualifies as a “serious health condition.” Unfortunately, it is likely an employer will receive the completed medical certification after the quarantine period ends, creating a further conundrum under this fact pattern.
Given the pandemic and the resulting difficulty in timely obtaining certifications, some employers have adopted the practice of designating the 10 to 14 days of quarantine leave as FMLA leave if an employee has tested positive for COVID-19 but is asymptomatic (even absent certification) if that employee is unable to telework. However, simply designating every such COVID-19-positive, asymptomatic employee unable to telework as FMLA-eligible has risks. There is potential for an employee to assert an FMLA interference claim if they are later denied additional FMLA leave due to absences being counted against FMLA that did not truly qualify as FMLA leave. Another consideration in deciding whether to offer this FMLA protection (when the FMLA may not actually apply) is that the employer may be erroneously establishing a right to reinstatement or other benefits when no right actually existed.
Lockton comment: While one way to reduce the risk in this situation would be for the employer to obtain a written agreement from the COVID-19-positive, asymptomatic employee that the employee desires and agrees that the quarantine period will be treated as protected leave under the FMLA (even absent physician certification), be mindful of the precedential effect the agreement may have for other employees with similar conditions or situations.
In this ever-evolving area, if you have an employee who tests positive for COVID-19 but is asymptomatic and unable to work from home, do not immediately terminate. First, send the FMLA Notice of Eligibility. After reviewing the completed physician certification, an employer can then make an informed decision that will be far more defensible than immediate dismissal.