Wednesday, October 22, 2014

519410079By now, many U.S. employers are heavily involved in preparing for workplace issues implicated by Ebola.  From a benefits perspective, make sure your planning gives appropriate consideration to the Family and Medical Leave Act (FMLA).

Undoubtedly, an employee who is eligible for FMLA leave will be entitled to such leave if the employee contracts Ebola, based on having a serious health condition that requires leave from work.  Similarly, an eligible employee whose covered family member contracts Ebola is likely to be entitled to leave to care for such family member (even if such “care” involves only psychological care and not physical care).

But what about the employee who is exposed or potentially exposed to Ebola, and, as a result, is requested or required – or even just volunteers, based on potential exposure – to be in quarantine?  And what about employees who have not been exposed but who are fearful of contracting Ebola in the workplace and refuse to come to work?

 An argument could be made that an eligible employee who is in quarantine based on exposure or a reasonable belief of potential exposure to Ebola is entitled to leave under the FMLA.  This is because the definitions of “serious health condition,” “incapacity,” and “unable to perform the functions of the [employee’s] position” include situations in which an employee must be absent from work to receive “treatment.”  “Treatment” in turn includes “examinations to determine if a serious health condition exists.” 

Individuals who are in quarantine due to Ebola exposure or potential exposure typically are subject to monitoring by heath care providers over a period of 21 days.  Accordingly, such individuals arguably satisfy the requirements for being entitled to job-protected FMLA leave for the duration of their quarantine.  It also should be noted that various states have enacted laws prohibiting employers from terminating employees when an official quarantine is implemented by state or federal public health officials.

As for employees who have not been exposed to Ebola but who refuse to come to work based on fears of exposure through contact with co-workers, the FMLA is less likely to be involved (although other federal and state laws, as well as other employer leave policies, could come into play).  It is conceivable, however, that an eligible employee may have a serious health condition (physical or mental) which is exacerbated by the stress or anxiety of a perceived (real or imagined) risk of exposure.  Assuming such an employee is able to obtain appropriate certification from a health care provider, the employee’s leave from work may be protected by the FMLA.  

Tuesday, October 21, 2014

In light of the numerous unresolved issues surrounding the process for plan sponsors to obtain a health plan identifier (“HPID”) for their  self-funded health plan, we suggested in an earlier post that plan sponsors consider delaying the application process in […]

Thursday, October 16, 2014

Annual open enrollment is always a complicated time for benefits teams…. Questions abound: Is the coverage offered legally compliant? What is the latest and greatest notice that must be included in the annual open enrollment package? Have the rules changed […]

Wednesday, October 15, 2014

Continuing our discussion of “quirky” counting rules under the Family and Medical Leave Act (“FMLA”), today we address these questions: May leave granted to an employee who is not eligible for FMLA leave can be designated as FMLA leave? And […]

Tuesday, October 14, 2014

With 2015 just around the corner, certain mandates under the Patient Protection and Affordable Care Act, as amended (“ACA”) are about to become effective. Health plans also have several existing enrollment and annual notice requirements. Below is a checklist of […]

Friday, October 10, 2014

On September 17th, the Department of Health and Human Services Office for Civil Rights (“HHS”) issued guidance to assist covered entities and business associates in complying with the privacy requirements under the Health Insurance Portability and Accountability Act of 1996 […]

Thursday, October 9, 2014

It’s time to ensure year-end qualified plan deadlines are satisfied. Below is a checklist designed to help employers with this process.  This checklist addresses both year-end deadlines and January 2015 deadlines which sponsors of qualified retirement plans may wish to […]

Wednesday, October 8, 2014

Recently, we began a discussion of “quirky” counting rules under the Family and Medical Leave Act (“FMLA”), starting with issues relating to overtime hours.  Today, we continue the discussion by addressing the “quirky” counting aspects involved in the intersection of […]

Friday, October 3, 2014

Twenty states and counting. Same-sex marriages are now recognized in 20 states and the District of Columbia. The most recent addition to this growing group is the state of Missouri. Pursuant to a ruling issued earlier today by Jackson County […]

Wednesday, October 1, 2014

Of all the administrative challenges posed by the Family and Medical Leave Act (“FMLA”), the most difficult may be ensuring that you are correctly determining FMLA hours available and taken for each employee.  Figuring out how to apply the general […]