The Long Shadow of COVID on FMLA

It was early in 2020 and COVID was making many headlines. At one company, employees were told that if they or an immediate family member suspected that they had been in close contact with someone who had tested positive for COVID, or if employees tested positive, they were to tell HR or the on-site nurse, stay home, and follow health department guidelines for quarantining — which then was 14 days.

In October of that year, Simon began having COVID symptoms and was tested. He informed the HR generalist this, who told Simon he should not return to work until he received his results. On October 23, Simon received a positive test result and was advised by his healthcare provider to self-quarantine for 14 days following the onset of his symptoms. His doctor also advised him of a “recommended regimen of continuing treatment” to alleviate his symptoms.

HR told Simon that he should return to work when his quarantine was over but did not set a specific date on which to return. Simon left a voicemail message for HR to indicate that, although his quarantine period was ending and he was due to return to work on Monday, his child had just been tested for COVID. Therefore, he wondered when he should return to work.

Simon returned to work on November 2 — 14 days after the onset of his symptoms. While at work, however, he was instructed to see the on-site nurse, who informed him that he was still subject to quarantine and should leave work because he should have calculated his 14 days from the date of his positive test, which was November 6, not from the onset of symptoms.

After quarantining for an additional three days, Simon again contacted HR to see when he could return to work. On November 6, however, HR told Simon that his quarantine had ended on October 30, and that he had been terminated effective November 2 for job abandonment.

Simon sued, in part because the employer never gave him documentation advising him of his FMLA rights. He also pointed out that he had an FMLA serious health condition because he received treatment and his doctor advised him of a regimen of continuing treatment. The employer argued that the regimen of treatment consisted of no more than over-the-counter medications, bed rest, and fluids.

The court found that all that miscommunication was enough to defy the employer’s motion to have the case thrown out, regardless of whether Simon had a serious health condition. The court also pointed out that, the fact that Simon was required to stay home, regardless of his symptoms, rendered him unable to perform the essential functions of his job.

Friends, this court signaled that a quarantine period is enough to be considered FMLA leave, so tread carefully. The virus is still with us.

Hallam v. Neenah Foundry Co., E.D. Wisconsin, No. 2:21-cv-01190, May 12, 2022