I'm getting calls and now also see AVVO questions that have some element of work suspension due to Covid-19. These are interesting and socially useful questions because so many are being required now to stay home.

Your facts indicate that other drivers not disabled are on paid leave for an unspecified duration and although you are disabled and on FMLA, you're wondering if you should be treated on the same paid leave status as your co-drivers. Many disabled employees like you all across the country are on FMLA during the same period employees are required to be on virus-related leaves of absence. Your question is twofold: a) do I have to provide updated information as my first leave period is extended and b) shouldn't I get get paid like all other workers on leave even if I am disabled? [This is my best effort to understand your question]

First, the FMLA requires you to update your employer concerning your extended leave status. The employee’s notice to the employer may be verbal or written. The employee is required to provide enough information for the employer to know that the leave may be covered by the FMLA, and when and how much leave the employee anticipates needing to take. Once approved for a particular FMLA leave reason, if additional leave is needed for that reason, the employee must reference that reason or the need for FMLA leave. In all cases, the employer may ask additional questions and/or for a certification to determine if the leave is FMLA-qualifying.

An employer may require that an employee provide reasonable notice to the employer if the need for FMLA leave changes while the employee is out on FMLA leave. For example, the employer may require that the employee notify the employer if the employee’s doctor determines that he or she can return to work earlier than expected or if his or her return to work will be delayed. The employer may also require that the employee provide periodic updates on his or her status and intent to return to the job.

So, in your case, the use of the form may be a requirement, but it cannot be an inflexible condition of continuing FMLA status. You are required to provide updated information as soon as possible before the first anticipated work date, and your doctor may be required to certify your disability to support the new estimated date. The form of the information is not so critical as the content. You state you provided an updated doctor "work status report." For interim purposes this may be sufficient, pending your doctor's opportunity to receive and complete the more detailed form. This is especially true as many doctor's offices are being inundated by Covid-19 testing requests or have elected to reduce hours for safety of their own staffs.

Your question about pay is particularly interesting. Should you be paid like non-disabled persons on leave? My argument would be that you should be treated equally but not preferentially under the law. That is, employees not sick with the virus and on leave for prevention measures only do not have a "serious medical condition" such that a physician would certify that condition within the requirements of the FMLA. You however do have a serious medical condition and that condition is or will soon be further documented by your physician.

My conclusion is that if your leave is currently unpaid FMLA leave, it will legally remain so even if you non-disabled co-drivers are on paid leave. Once you are released by your doctor, your status would change, and if not allowed to return to work, you would then qualify to be paid like your co-workers. Not to pay you would subject your employer to a charge of retaliation and/or discrimination because of your prior use of FMLA.