Defense and More: Business Attorneys

As Economies Reopen, So Too Do Attempts To Avoid Granting Leave

19 June 2020

Darrell Hanson

A sad fact of life in some companies is a complete dislike of granting extended leave to employees. With COVID-19 affecting everyone's lives now, however, being able to either get extended leave or have accommodations like continuing to work from home becomes more important than ever. You have certain leave rights granted by family leave laws and the Americans With Disabilities Act, and your employer should be able to work out a plan for you that keeps you and your family safe while allowing you to do what work you can. As you negotiate with your employer, watch out for these issues, and contact a lawyer if you run into trouble.

Watch out for Reduced Pay

Your employer may try to get you to work for reduced pay in exchange for being able to work from home when you need to take care of a sick family member or when you need to physically distance from others because of someone in your household who is high risk. The reasoning they might use is that the Family Medical Leave Act promises only unpaid leave, so trading the ability to stay home with temporarily reduced pay may seem like a compromise. In other words, you get to stay home and continue to get a little pay. However, the FMLA does not require that you work for lower pay. If you agree to work from home during your leave, you must be paid as normal for the time you work. The only reduced pay you should get is if you reduce your hours working, and then your pay for those hours should still be the equivalent of what you'd get for working those hours in the office.

Your Family's Illnesses Are Your Illnesses

You may be requesting leave because you need to physically distance to avoid bringing the virus home to your family, who may have high-risk conditions. Your boss may not want to grant you leave because you're not the one directly affected. You can still get leave, however, because the FMLA is specifically meant to allow you to care for a family member without reprisal. Remember, FMLA leave, again, is unpaid, but your leave should not be denied because you yourself aren't sick.

If Remote Work Is Possible, That's a Reasonable Accommodation

If all you need is the ability to work from home and you'll still be able to do all your work, then that could be (assuming working from home really is possible with your job) considered a reasonable accommodation under the ADA. That's not a guarantee if you have to sue, so definitely talk to a lawyer about that, but there's no reason why you have to be in the office in person if your job can be done entirely from home, especially if staying home means keeping someone else with a health condition safe.

All this makes employers as a whole seem nasty, and that's really not the case; many grant leave and make accommodations willingly and want to see you and your family remain healthy. But if you run up against that one boss who doesn't want to cooperate, then you may need to seek legal help from a COVID-19 medical leave lawyer.

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