30 MAY / JUNE 2021 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Like other infectious diseases, COVID-19 can result in long-lasting symptoms. People who were infected and experience persistent or lingering symptoms for weeks or even months are known as “long-haulers.” Not all COVID-19 long-haulers, however, required lengthy hospitalization, if any. Some had mild to moderate symptoms. It is estimated that roughly 10% of persons infected with COVID-19 are or will be long-haulers. Symptoms vary and may include fatigue, body aches, persistent cough, headaches, brain fog or impaired memory/concentration, shortness of breath and impaired lung function. Symptoms may improve for a period of time before relapsing with prior or different symptoms. Employers must be aware of their obligations under the Family and Medical Leave Act and Americans with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act. Employees who are long-haulers or who suffer from serious consequences from the disease (e.g., myocarditis, depression, blood clot disorders) may be protected under both statutes, whereas employees who recover quickly may only be protected by the FMLA. FMLA Coverage Generally, private employers with at least 50 employees are covered by the FMLA. The FMLA provides covered employees (those who have worked for the employer for at least 12 months and have worked at least 1,250 hours during the 12-month period immediately preceding the leave) with up to 12 workweeks of unpaid leave during a 12-month period, if the employee has a “serious health condition that makes the employee unable to perform” his or her job. The leave can be taken intermittently or in blocks of time. Even employees with mild symptoms of COVID-19 COVID-19 Long-Haulers Implications under the FMLA and ADA might be entitled to FMLA. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Inpatient care is typically an overnight stay in a health care facility. Continuing treatment is more complex, but generally is a period of incapacity of more than three consecutive full calendar days and any subsequent treatment or period of incapacity that also involves either (1) treatment or consultation with a health care provider two or more times within 30 days of the initial incapacitation, or (2) treatment or consultation with a health care provider at least once and a regimen of continuing treatment under the supervision of the health care provider. A “regimen of continuing treatment” includes prescription medication, even without a follow-up medical appointment.1 Over-the-counter medications, bed rest and fluids, or other treatments that may be initiated without the direction of a health care provider do not qualify as a regimen of continuing treatment. Long-haulers or those with chronic conditions are likely eligible for intermittent FMLA leave. Intermittent leave is often difficult to manage, because it is unpredictable. The employee may go through periods of remission, during which little or no time off is needed, but then experience a flare-up. The employee may also be eligible for short-term disability benefits, depending on the terms of the employer’s policy. ADA Coverage The ADA applies to employers with 15 or more employees. Under the ADA, employers must reasonably accommodate a qualified individual with a disability, unless the accommodation causes an undue hardship on the employer. A qualified individual is a person with a covered disability who, with or without reasonable accommodations, can perform the essential functions of the job.
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