The short answer: When the virus meets the definition of a serious health condition under the federal Family and Medical Leave Act (FMLA), either for an employee or an employee’s family member. If so, leave due to the condition would be FMLA-protected (assuming the employee meets the FMLA eligibility criteria). But it’s not always that easy.

The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care, or continuing treatment by a health care provider.

Inpatient care is generally an overnight stay in a health care facility. So, if your employee (or employee’s family member) is hospitalized overnight, it’s a serious health condition. While many people who get COVID are never hospitalized, many still are.

Continuing treatment is, however, a bit more involved. Please note that “treatment” can include medical exams to determine if a serious health condition exists and evaluations of the condition.

A serious health condition involving continuing treatment includes the following:

• A period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves -
  • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
  • Treatment at least once, resulting in a regimen of continuing treatment.
• Any period of incapacity due to pregnancy or for prenatal care.
• Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period of time. These may cause episodic rather than continuing periods of incapacity.
• A period of incapacity for a permanent or long-term condition in which treatment may not be effective.
• Any period of absence to receive multiple treatments (i.e., chemotherapy, radiation, physical therapy, dialysis), for restorative surgery or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of treatment.

Not all parts of the definition will apply to a given situation. COVID would likely fall under the first bullet, but could find its way under the third, fourth, or fifth bullets for individuals with long COVID.

If an employee tests positive for COVID and needs to quarantine or isolate, treat the situation as you would any request for leave, even if the employee has no symptoms. Provide an eligibility/rights & responsibilities notice. You may ask for a certification supporting the need for leave, and it should provide you with enough information to determine if a serious health condition — including COVID — exists, and if the employee is incapacitated by it. If so, the employee may take FMLA leave because of COVID.

Don’t rely on the name of a condition to determine if it’s an FMLA serious health condition, but on the definition. And don’t forget any state leave provisions that might also apply.

Key to remember: COVID can certainly be an FMLA-related event, but much will depend upon whether it meets the FMLA’s definition of a serious health condition. Request a certification and review it carefully to make this determination, even if an employee is asymptomatic.