Q: Can an employee elect to use FMLA leave as a means of avoiding contracting COVID-19?

The FMLA protects those individuals who either have “a serious health condition” or for caring for family members who have a “serious health condition.” Serious health condition refers to a an illness, injury, impediment, or physical or mental condition that involves (a) inpatient care at a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider. Attempting to avoid contracting a serious health condition, such as COVID-19 is not covered under the FMLA. 
However, if an employee has a disability covered by the ADA, this may be a request for an accommodation, which trigger’s the employer’s obligation to engage in the interactive process with the employee  to determine if such an accommodation should be granted. In essence, the employee who has a disability could be seeking an accommodation to avoid exacerbating a current disability.

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