The federal Family and Medical Leave Act (FMLA) entitles eligible employees to take unpaid, job-protected leave “to care for the employee’s spouse, child, or parent who has a serious health condition.” The FMLA does not apply to employers who do not have at least 50 employees within 75 miles of a worksite. For those employers who are covered by the FMLA or a state equivalent, however, an employee exposed to Ebola may have a legally protected right to leave.
If an employee’s spouse or child has contracted Ebola, FMLA leave is most likely appropriate, even if the spouse or child is in a hospital’s isolation ward and the employee is not needed to care for the sick patient. Federal guidance explains that providing “psychological comfort and reassurance” to a spouse or child is sufficient to qualify the employee for FMLA leave. If it is uncertain whether the employee’s spouse or child has contracted Ebola, but the spouse or child has been subjected to a state-mandated quarantine, FMLA leave is most likely appropriate as well. In that case, while the employee may not be able to come into direct contact with the patient, the employee would be needed to provide support outside the quarantined area, such as buying food and supplies for the patient.
If an employee cannot provide medical certification that his or her spouse/child has contracted Ebola or has a high risk of having contracted Ebola, then the employee would likely not be entitled to FMLA leave. There exists significant irrational fear of Ebola among the general public, and without medical certification, it would be unreasonable to give FMLA leave to any employee who is simply concerned about contracting Ebola.
If an employee requests time off under the FMLA for treatment of Ebola, the employee can be required to produce medical certification from a doctor that he or she has contracted Ebola or has a high risk of having contracted Ebola. For example, if the state healthcare agency imposes a quarantine on an employee, then that employee is qualified to take FMLA leave (assuming he has met the other eligibility requirements, such as minimum hours of service). Without medical certification the employee can be denied leave under the FMLA.
From a practical perspective, employers may want to avoid discouraging employees from taking leave if they think they have contracted Ebola. Employers must be careful, however, about allowing FMLA leave for some employees without a medical certification, but denying FMLA leave for other employees due to a lack of credibility. Treating employees without medical certification differently, simply on the basis of employer-perceived credibility, may expose the employer to other types of discrimination claims, such as race, sex or national origin discrimination.
Some state laws offer greater protections than the FMLA so it is important to check compliance with both federal and state laws when determining whether an employee with a serious health condition (or a family member with such a condition) has a right to leave.