When It's More Than a Cold: A Time Off Refresher

Author: Helena Oroz, Senior Legal Editor

In unfortunate ways, what's old is new again, at least in terms of contagious illnesses.  More than half of US states are currently reporting confirmed measles cases, whooping cough (pertussis) is on the rise, and even tuberculosis seems to be making a comeback.

An illness resulting from such an infection can last for an extended period and sometimes result in serious complications.  According to the Mayo Clinic, the measles infection occurs in stages over two to three weeks. The US Centers for Disease Control and Prevention (CDC) describes a whooping cough infection as resolving over weeks or even months.

As with any medical issue, complications and recovery from such illnesses can vary, depending on individual factors like age and vaccination status. Generally speaking, though, an employee who is sick with measles or caring for a child with whooping cough will need time away from work for longer than an employee with a simple cold, for example.

If you feel like this feels a little bit like a COVID-era conversation - you're not too far off.  It's still a common employer question: We have an employee who is quite ill, but we don't think they are eligible for leave or time off - what should we do?

Here are some things to think about.

Does the FMLA apply to this situation?

The federal Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with job-protected unpaid leave for qualified medical and family reasons.

Under the FMLA, an eligible employee can take up to 12 weeks of unpaid leave in a single 12-month period for their own or a family member's serious health condition.

A "serious health condition" under the FMLA is an illness (or injury, impairment, or physical or mental condition) that involves either:

• Inpatient care, like an overnight stay in a hospital, including any period of incapacity or any subsequent treatment in connection with such inpatient care; or
• Continuing treatment by a health care provider, like being unable to work for more than three consecutive days and requiring ongoing care from a doctor.

An eligible employee might be entitled to FMLA leave if, for example, their young child is hospitalized due to whooping cough and subsequently needs treatment in connection with that inpatient care.

The FMLA is nothing if not definition driven. Whether the extended illness at issue qualifies for FMLA leave is dependent on whether that definition of serious health condition is met.  

What about the ADA?

The federal Americans with Disabilities Act (ADA) doesn't mandate leave time, like the FMLA. Rather, the ADA requires employers with 15 or more employees to provide employees and applicants with disabilities with reasonable accommodations.  Depending on an employee's situation, reasonable accommodation may mean time off from work.

For example, an employee with a serious illness who exhausts their 12 weeks of FMLA leave may need additional time off if they can't yet return to work due to their condition.

While the ADA is less likely to be implicated when an employee has measles, for example, it's not impossible. One person might recover easily from measles while another might face serious complications and even hospitalization.

The ADA demands individualized inquiry. This means that an employer presented with an accommodation request for additional time off to recover from illness (including measles) should review the request in earnest, without making assumptions, and engage in the interactive process to understand the employee's impairment and accommodation request.   

Are state or local laws implicated?

An employer should always be aware of applicable state and local leave and time off laws to ensure that employees receive all of the time away from work to which they might be entitled in times of extended illness.  

This could include laws that cover:

• Sick leave;
• Family and medical leave;
• Time off for any reason;
• Public health emergency leave; and
• Disability accommodations.

These laws often cover smaller employers than their federal counterparts. For example, a disability accommodation law may apply to all employers in a particular jurisdiction, while the ADA applies only to employers with 15 or more employees.

It is particularly important for multijurisdictional employers and those with remote employees to understand when and how these laws might apply to their employees in times of extended illness.

Are there company time off policies that apply?

An employer may have paid or unpaid sick leave, family and medical leave, personal leave or other time off policies that apply to eligible employees with issues related to their own extended illness or that of a child.

Managers and supervisors need to know and understand when these policies apply.  Also, an employer in a jurisdiction with mandatory leave laws should ensure that its own policies do not conflict with those requirements. 

What else?

An employer without a time off policy may wish to consider implementing one to address employee needs when dealing with their own or a family member's serious illness. Even unpaid time off can help bridge those gaps.

Employers may also wish to consider temporary flexible work arrangements (remote work, flexible schedules, shift swapping, etc.), either in conjunction with a leave of absence or after an employee has exhausted their available leave time.

Final Thoughts

COVID taught us many hard lessons that are way beyond the scope of this article, but here's an easy one: almost everyone gets sick sometimes, and sometimes it's more than a cold. 

Employees may need an extended time away from work to care for themselves or a seriously sick family member with measles, whooping cough, or another highly contagious, potentially serious illness. 

Employers must be able to recognize what's covered under the law and their own policies to ensure that employees get their time off - and get healthy.