Shortly after the Department of Labor issued its FFCRA regulations, the state of New York filed a lawsuit challenging some of the provisions.  Today (four months after the regulations went into effect, and just five months before the FFCRA is set to expire), the federal district court in New York struck down four provisions in the regulations.  The four provisions struck down include:

  • the definition of who qualifies for the healthcare provider exemption;
  • the exclusion from benefits of employees whose employers do not have work for them;
  • the requirement that employees secure consent for intermittent leave for certain qualifying reasons; and
  • the requirement that documentation be provided before taking leave.

The court let stand the remaining provisions of the DOL’s regulations.

The court’s decision leaves open a lot of questions for employers who are trying to comply with the law (and also demonstrates the inherent issues when congress and federal agencies try to rush something through).  Employers who have been following the regulations, may now find themselves at risk.   And the decision leaves employers left to surmise important questions such as what definition of healthcare provider should be used under the FFCRA, and whether employees on furlough or who otherwise do not have work available (regardless of whether the employee is unable to work due to a COVID issue) are eligible for pay.

The court’s decision creates new risks for employers trying to comply.  For public employers and employers with less than 500 employees, the rules have changed.  Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.

The U.S. Department of Labor (“DOL”) recently issued additional clarification on its FAQs and guidance regarding the FMLA and the FFCRA in the context of the COVID-19 pandemic.  Some highlights include:

Telemedicine Visits Are “In-Person” Visits with a Healthcare Provider under the FMLA

Telemedicine visits (those medical appointments that are conducted by remote video conference via computers or mobile devices) will be considered as “in-person” visits with a health care provider under the FMLA.  However, to be considered an “in-person” visit, the telemedicine appointment must:

  • include an examination, evaluation, or treatment by a health care provider;
  • be performed by video conference;
  • and be permitted and accepted by state licensing authorities.

The DOL reasons that this approach serves the public’s interest because health care facilities and clinicians are under advisories to prioritize urgent and emergency visits and to preserve personal protective equipment and patient-care supplies.  However, the DOL notes that telemedicine visits will be considered “in-person” visits only until December 31, 2020.

COVID-19 Tests May be Required Before Returning to Work From FMLA Leave

The DOL also provides updated guidance on whether an employer can require employees returning from FMLA leave to get a COVID-19 test before returning to work.  The DOL explains that the FMLA does not prohibit an employer’s return-to-work COVID-19 testing requirement, as long as the testing requirement applies to all employees returning from any type of leave, whether FMLA or non-FMLA.  Note, however, that an employer should also consider any applicable state law or order that may impose restrictions on when COVID-19 testing is permitted and what types of COVID-19 tests are permitted.

DOL Provides Insights into Reopening and Return to Work Scenarios under the FFCRA

The DOL also added additional questions and answers to the FAQs on the Families First Coronavirus Response Act (“FFCRA”).  In these new FAQs, the DOL explains:

  • When an employee returns to work from FFCRA leave and there are lingering concerns regarding whether the employee is returning to work too soon and could potentially expose others to COVID-19, an employer may:
    • Consider temporarily reinstating the employee to an equivalent position with less co-worker interaction or require the employee to telework, and
    • Require an employee comply with job requirements that are unrelated to being out on FFCRA, such as a general requirement that any employee be tested for COVID-19, or telework, if the employee has interacted with a COVID-infected person.  Such a requirement must apply to all employees.
    • The DOL cautions that an employer may not require an employee to telework or be tested for COVID-19 simply because the employee took FFCRA leave.
  • The FFCRA emergency paid sick leave is limited to a total of 80 hours, even if an employee took FFCRA before being furloughed and is now returning to work from furlough.  Any balance under 80 hours of emergency paid sick leave can be taken through December 31, 2020 for qualifying reasons.
  • If an employee took expanded FMLA prior to a furlough, an employee is still entitled to any balance of FMLA leave under 12 weeks upon returning to work after a furlough.
  • An employer may not extend an employee’s furlough because the employee will need to take FFCRA leave to care for the employee’s child upon return to work.  The DOL reminds employers that they may not discriminate or retaliate against employees (including prospective employees) for exercising or attempting to exercise rights under the FFCRA.

Links

Links to the updates discussed in this blog are below:

COVID-19 and the Family and Medical Leave Act Questions and Answers (See Questions 12 and 13 for more information on the above discussion.)

COVID-19 and the American Workplace (FFCRA FAQ) (See Questions 94-97 for more information on the above discussion.)

Employers are encouraged to continue to check for updates to DOL FAQs and guidance, which is continually evolving during this COVID-19 pandemic.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, (“Executive Order”) which provides COVID-19 related paid sick leave for “food sector workers” who work for larger employers in the state. The California legislature is now considering codifying those leave requirements with Senate Bill 729.

Who is a covered “Employer”? 

As with the food sector leave provided under the Executive Order, the leave would apply to employers with 500 or more employees in the United States. The language of the Senate Bill uses the same definitions of employers as the Executive Order.

Who is a “Food Sector Worker”?

The Senate Bill’s definition of food sector worker mirrors that of the Executive Order and includes the following:

  • Employees engaged in the canning, freezing, and preserving industry, as defined under Wage Order 3-2001, section 2(B).
  • Employees engaged in industries handling products after harvest, as defined under Wage Order 8-2001, section 2(H).
  • Employees engaged in industries preparing agricultural products for the market, on the farm, as defined under Wage Order 13-2001, section 2(H).
  • Employees employed in an agricultural occupation, as defined under Wage Order 14-2001, section 2(D).
  • Employees who work for an employer that operates a food facility, as defined under the California Health and Safety Code section 113789.
  • Employees who deliver food from a food facility, as defined under the California Health and Safety Code section 113789.

The food worker also must qualify as an essential critical infrastructure worker and be exempt from the requirements imposed by any statewide stay-at-home order.  Further, the food worker must leave their home to perform work for or through their employer.

What time off is provided?

Like the Executive Order, the proposed bill requires covered employers to provide full-time employees eighty (80) hours of paid time off and part-time employees a proportionate time off for the following reasons:

  • The food sector worker is subject to a federal, state, or local quarantine or isolation order.
  • The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Unlike the Families First Coronavirus Response Act (“FFCRA”) and other recently passed supplemental paid sick leave ordinances in California, neither the leave outlined in the Executive Order nor the Senate Bill provides leave for those caring for a family member who is quarantined or sick, or caring for a minor child whose school or childcare has closed due to COVID-19.

The Senate Bill also amends the California Health and Safety Code to mandate employers to allow food sector workers to wash their hands every 30 minutes or more if needed. This requirement is also outlined in the Executive Order.

The leave set forth in the Executive Order expires when the Governor lifts the stay-at-home orders. Conversely, the proposed legislation would sunset when the state of emergency is lifted for the State.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and the workplace. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

You can hear the parents wailing across the country (almost like kindergartners on their first day of school), as states begin to announce their plans to keep physical schools closed or alternate between in-school and virtual classes for the upcoming year. The collective parent wail is outmatched only by that of their employers, who are faced with the Hobson’s choice of what to do with employees who will now seek more flexibility in scheduling, work expectations or remote work to account for their continued childcare and home-schooling obligations.

Outside of any FFCRA obligation or state paid sick leave/school leave/family leave obligation (some of which now cover this scenario), in most jurisdictions there is no legal obligation to accommodate parents who cannot perform their job because of childcare issues.  But parents often account for a third of the workforce. An inflexible approach may lead to a loss of key employees and negatively impact the ability to attract future talent. And there is increasing concern that the nature of an employer’s response to this issue may contribute to claims of disparate impact against women or discrimination based on family responsibilities.

As a practical matter, employers, who are facing their own economic struggles, can ill afford to pay employees for unproductive time spent educating, supervising or caring for children at home. And the job still needs to get done. This has left many employers asking, “Is there a solution to this “academic” problem?”

Certainly, not a simple one. Once you move beyond leave obligations, employers will need to leverage flexibility and creativity.

Some options employers may consider, include:

  • Create or expand permanent remote work roles: Reimagine roles to facilitate long-term remote work opportunities, achieving corresponding savings by decreasing or redesigning commercial real estate footprints.
  • Create temporary “transitional” remote work opportunities: While not legally required, employers can go “above and beyond” to create temporary but productive work opportunities that can be performed remotely. In creating such roles, employers would have the ability to define the duties, compensation level, and duration of the programs. Think outside of designated job titles and identify productive work that can be performed on a temporary basis remotely. Clear communication reserving all rights to modify or discontinue programs is critically important.
  • Enhance flexible scheduling: Allow employees to work around school hours or around their spouse’s schedule so they can share the childcare. (The DOL recently added FAQ 15 allowing employers to pay employees who work in separate smaller blocks throughout the day only for hours actually worked without violating the continuous workday rule.)
  • Expand childcare benefits: If you need workers physically present at the workplace on a full or part-time basis, consider offering onsite childcare or partnering with a service to provide childcare benefits or education.
  • Support Home Tutoring: Encourage or assist employees who need childcare to look for college-aged (or even high school-aged) students (particularly those interested in going into education) who may also be learning remotely and may have time to provide childcare or tutor during the day. Perhaps even provide an on-line forum where such information can be shared (with appropriate disclaimers, of course). Consider hosting a virtual “Tutor/Childcare Fair” providing options and resources for employees or providing a stipend to help defray the costs of tutoring/childcare.
  • Adjust FSA benefit plans: Consider allowing mid-year changes to FSA plans in accordance with recent IRS guidance.
  • Modify FTE Status: Consider allowing employees who are struggling to manage work and childcare responsibilities to switch temporarily to part-time or reduced hours, with corresponding reductions in pay.
  • Create temporary unpaid leave programs:   Develop temporary unpaid leave programs for employees who have no statutory or company sources of paid or unpaid leave available to them.
  • Explore temporary or permanent transfers: Allow employees to transfer to open positions that can better accommodate the remote work or flexible scheduling. Allow remote work where possible.

As the saying goes, “necessity is the mother of invention.” Employers can brainstorm ways to get through this time period, knowing that with the right planning and communication they can lawfully discontinue and sunset any voluntary programs. Employers adopting such initiatives would be well-served to communicate the temporal or other limitations of such programs and perhaps have employees sign acknowledgments confirming that any special “COVID-19” programs can be modified or discontinued at the employer’s sole discretion.

In addition, while many employers have been very lenient to date with the productivity of employees working remotely, now that it appears the need may continue through the end of the year and possibly for the entire school year, employers should approach this next wave of flexibility requests with more intention. Set forth the expectations for the job and talk to employees about performance issues that have arisen with any previous flexibility. Make sure they understand that while you are willing to work with them during this difficult time, and want them to succeed, ultimately, it will require effort on their part to ensure that the job gets done.

Of course, even the most flexible employer may find it difficult to allow flexibility in every role. In those circumstances where there is no protected leave available, and the employer is either not interested in providing an accommodation or it is not possible to accommodate in a fashion that will allow the job to get done, then the choice may need to be left to the employee as to whether they continue in the position (and find someone to provide childcare) or whether they need to step away from the job during this time.

As employers consider these programs and individual requests, employers must strive to ensure consistency and avoid assumptions about who in a family acts as the primary caregiver. Even if a request cannot be granted, handling each request in a thoughtful, deliberate manner will go a long way to promoting employee retention and limiting risk.

As the new school year approaches, stay educated on the latest COVID-19 developments here or contact your Jackson Lewis attorney for assistance.

Colorado has enacted the Healthy Families and Workplaces Act (SB20-205) (HFWA) to require employers to provide employees with up to six days, or up to 48 hours, of earned paid sick leave.

Employers with at least 16 employees must begin providing earned paid sick leave on January 1, 2021. All employers, regardless of size, must begin providing earned paid sick leave effective January 1, 2022.

Effective immediately, the HFWA requires that employers, regardless of size, comply with the federal Emergency Paid Sick Leave Act in the Families First Coronavirus Response Act (FFCRA), which stays in effect until December 31, 2020. The Emergency Paid Sick Leave Act provides up to 80 hours of sick leave for COVID-19-related reasons. The HFWA does not require employers to comply with the Emergency Family and Medical Leave Expansion Act of the FFCRA, which provides 12 weeks of pay to care for children whose school or place of care is closed, or childcare provider is unavailable, because of COVID-19-related reasons.  Read more.

On July 16, 2020 the Department of Labor (“DOL”) unveiled its new FMLA forms. As we previously reported, the DOL announced its plan to revamp the forms in August 2019. However, the DOL made further revisions to the August 2019 drafts based on public comments. The new forms can be used to comply with many technical nuances of the FMLA, but, like prior versions, are voluntary.

The new forms are:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility of Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency for Military Family Leave

WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave

WH-385V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL webpage also features a Q&A section regarding the new forms. Because the forms are voluntary, the DOL reiterates that employers are free to use the old or “expired” forms and to modify the new forms. The DOL cautions, however, that employers may not seek information beyond that specified in the FMLA regulations or refuse a certification that contains all the information needed to determine if the leave qualifies for the FMLA.

The stated purpose of the recent revisions was to make them “easier to understand.” Consistent with this objective, the new forms seek more pointed responses and offer examples and explanations.

Significantly, the new forms limit written responses and reduce the guess work (both for medical providers completing the forms and employers interpreting the responses).”

The new medical certification forms are also likely to temper the amount of information medical providers offer regarding serious health conditions. The prior certification forms invited medical providers to describe medical facts related to the condition, including “symptoms, diagnosis, or any regimen of continuing treatment,” and dedicated several blank lines to respond. The forms now expressly state that this information is not “required,” and note that certain information (e.g., diagnosis) may be restricted by state or local law. The forms offer only a couple of lines to provide specific details.

The minimalist certification forms have pros and cons. It may be easier and faster to complete the new forms. Also, the revisions are likely to curb inconsistent or incomplete responses from medical providers. However, it is unclear how the potential lack of medical information will impact the administration of the leave itself, particularly in cases involving intermittent leave or multiple serious health conditions.

These changes are not the only changes contemplated by the DOL.  In addition to the new forms, the DOL published a Request for Information, which solicits feedback on changes employers and employees would like to see in the FMLA regulations “to better effectuate the rights and obligations under the FMLA.” The Request for Information asks for comment on the following topics, but emphasizes that feedback on unrelated FMLA issues is welcome:

  • The definition of “serious health condition,” difficulties regarding the definition of “chronic condition,” and situations in which employers/employees believe the definition of “serious health condition” was over- or under-inclusive.
  • Intermittent leave and reduced schedule leave, and challenges related to the timing of employee requests.
  • The employee notice requirements under the FMLA and whether employers/employees have sufficient understanding of their rights and obligations under the FMLA to effectively communicate.
  • Challenges related to the medical certification process that are not addressed in the revised forms.
  • Whether issues in recent opinion letters should be addressed through the regulatory process.
  • Any specific information or data related to challenges with administering FMLA leave.

The Request for Information presents employers with an opportunity to share the struggles and successes that come along with the FMLA. The DOL is accepting comments through September 15, 2020. For employers who have struggled with FMLA abuse by their employers, the DOL’s Request for Information provides a unique opportunity to have your voice be heard.  Jackson Lewis can assist you in submitting comments on these topics.

 

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

South Carolina Governor Henry McMaster signed into law the “South Carolina Lactation Support Act,” requiring employers to provide employees reasonable unpaid break time, or paid break time or mealtime, each day to express breast milk.

The Act went into effect on June 25, 2020, and, by July 25, 2020, the South Carolina Human Affairs Commission (SCHAC) must post on its website information to educate employers, employees, and employment agencies about their rights under this Act. Employers then will have 30 days to comply with the Act. Read more.

Its July. A time when in normal years, schools are closed and families are planning vacations. But in 2020, paid vacation is being replaced with paid leave under the Families First Coronavirus Response Act (“FFCRA”), leaving employers asking, can they still do that?!

For public employers and employers with less than 500 employees, the FFCRA provides two weeks of paid sick leave and up to 12 weeks of Emergency FMLA. The most popular reason for taking both leaves is that the employee is unable to work or telework due to a need to care for the employee’s child(ren) due to a school or childcare closure caused by COVID-19. Many employers hoped that the need for this leave would cease as summer arrived, after all, schools are normally closed in the summer — so the closure would no longer be caused by COVID-19. Not so fast.

Although the need for FFCRA leave due to school closures should have subsided, employees may still seek this leave if their childcare is closed due to COVID-19.

Last week the Department of Labor issued a Field Assistance Bulletin providing guidance to its investigators as to whether the closure of a summer camp, summer enrichment program, or other summer program for COVID-19 related reasons could support an employee’s request for FFCRA leave. And the answer is, not surprisingly, yes. Summer camps and programs may qualify as places of care of employees’ children for the purposes of FFCRA leave. The question is whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons. In many cases, employees had not yet enrolled their children in these programs in March when everything starting shutting down.

According to the Bulletin, employees may be entitled to FFCRA leave for the closure of a summer camp or program if:

• The child was enrolled in the camp or program before the closure was announced;
• The family submitted an application to participate in the camp or program before the closure;
• The family submitted a deposit for the camp or program;
• The child recently attended the camp or program (in 2019 or 2018) and is currently eligible to attend again;
• The child is on a waitlist;
• Or other affirmative evidence of a plan or intent for the child to attend the camp or program.

The DOL recognized that it is not a one-size fits all inquiry, but a parent’s mere interest in a camp or program is generally not enough. The Bulletin, which is written to guide the department’s investigators tells its investigators that when evaluating whether an employer improperly denied FFCRA leave to an employee based on the closure of a summer camp or program they should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19.

How does this help an employer? Employers are still limited in what information they can require before providing leave. Generally, an employee who requests FFCRA leave must provide the employer information in support of the need for leave either orally or in writing, including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason.

Additionally, in the case of leave to care for the employee’s child whose school or place of care is closed, the employee must provide the name of the child, the name of the school, place of care, camp or summer program that is closed and a statement that no other suitable person is available to care for the child. In other words, although the employee may need to prove to the DOL investigator that it was more likely than not that the child would have attended the camp, the employee doesn’t necessarily need to prove it to the employer, making it difficult for employers to determine whether the employee is legitimately entitled to the leave.

On July 1, 2020, a number of substantive changes (including expanded coverage) to Chicago’s Paid Sick Leave Ordinance (PSLO) will become effective. These changes stem from recent amendments to the PSLO and the rules adopted by Chicago’s Department of Business Affairs and Consumer Protection (BACP). Read more.

The “Tennessee Pregnant Workers Fairness Act” (Senate Bill 2520) requires every employer with at least 15 employees to make a reasonable accommodation for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions, unless such accommodation would impose an undue hardship on business operations. The new law goes into effect on October 1, 2020.  Read more.