Other Considerations

Leave Issues

  • HR’s job is usually to keep employees from missing too much work (limited PTO, attendance programs).
  • COVID-19 requires different thinking:
    • How do we keep sick employees at home?
    • How do we avoid using up their sick/PTO time?
    • How can we get those who are able to work at our site or remotely?

Returning to Work

  • Monitor and follow current CDC guidance on when an individual who has had COVID-19 can return to a general business setting.
  • An employer may require a return to work note from a physician, consistent with its policies, including FMLA policy.


  • Are they paid? (They need not be, for non-exempt employees.)
  • Must employees exhaust paid leave? (Employers can require this.)
  • Does the absence count as an “occurrence”? (If it is not FMLA leave, it can.)
  • Should absence for COVID-19 form the basis for discipline? Beware of conflicting policy approaches.
    • “We want you to stay at home if you're sick.”
    • “But we'll discipline if you do.”

FMLA Considerations

  • COVID-19 is likely a serious health condition under the FMLA.
  • An absence of more than three consecutive calendar days; and
    • Two treatments by a health care providers, or
    • One treatment plus continuing regimen of treatment.
  • If an absence is FMLA-covered, it should not be counted under an “occurrence” attendance-control policy.

ADA Considerations

  • COVID-19, as it is now, is likely not a disability.
  • However, complications from COVID-19 could constitute a disability.

OSHA Considerations

  • OSHA’s “General Duty Clause” to provide a workplace free of known hazards may obligate some employers to take action.
  • Work environments for contagious diseases are categorized into high risk (e.g., health care settings), medium risk (e.g., restaurants, stores, and other environments with public interaction), and low risk (e.g., closed work environments without frequent public interaction - offices, manufacturing plants).
  • OSHA’s webpage for COVID-19 is https://www.osha.gov/SLTC/covid-19/


  • We do not recommend a requirement to obtain a seasonal flu shot, or a COVID-19 vaccine, should it be generally available.
  • However, inducements to obtain vaccinations may encourage employees to obtain one (e.g., on-site administration of shot; low or no cost to employee).
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