On December 29, 2020, the U.S. Department of Labor (“DOL”) issued two field assistance bulletins (“FABs”) aimed at clarifying obligations under the Family and Medical Leave Act (“FMLA”) in light of the prevalence of telework and telehealth.

The first FAB (No. 2020-07), Electronic posting for purposes of the FLSA, FMLA, Section 14(c) of the FLSA, EPPA, SCA, and DBA, explains the circumstances under which an employer can meet its FMLA posting obligations via electronic notice. Under 29 C.F.R. § 825.300(a), covered employers must “post and keep posted” a notice explaining the FMLA and providing information about the procedures for filing complaints of violations of the FMLA with the DOL. The notice must be posted “prominently” where it can be “readily seen” by employees and applicants. The existing FMLA regulations already allow employers to meet the posting obligation through electronic posting, as long as all other requirements are satisfied.

The FAB further clarifies that electronic posting is acceptable where all hiring and work is done remotely, and an employer posts the appropriate FMLA notice on an internal or external website that is accessible by all employees and applicants at all times. The FAB generally advises employers that they should take steps to inform employees of where and how to access the notice electronically. In addition, electronic posting may not be sufficient if the employer does not customarily post notices electronically, or if the user must request permission to view the file. For employers with workers split between on-site and remote work, the FAB suggests both hard-copy and electronic posting.

The second FAB (No. 2020-08), Telemedicine and Serious Health Conditions under the Family and Medical Leave Act (FMLA) outlines the circumstances under which telemedicine counts as an “in-person” visit under the FMLA. This definition is important, because an employee may be unable to establish that he or she has a “serious health condition” in the absence of an in-person visit with a medical provider. Specifically, the FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves inpatient care…or continuing treatment by a health care provider.” See 29 C.F.R. §§ 825.102, 113-115. The regulations further define “treatment by a health care provider” to mean “an in-person visit to a health care provider.” See 29 C.F.R. § 825.115(a)(3).

Due to the COVID-19 pandemic, many states have implemented measures to permit or expand telemedicine or telehealth. The federal government has also taken steps to ease restrictions and make it easier for providers to provide care via video conference or telephone.

In recognition of these changes, the DOL addressed telemedicine in July 2020 in its informal guidance, COVID-19 and the Family and Medical Leave Act Question and Answers. The guidance stated the DOL’s position that, until December 31, 2020, telemedicine visits could satisfy the in-person visit requirement if certain criteria were met.

As a continuation of this policy, the FAB states that a telemedicine visit may qualify as an “in-person visit” for purposes of the FMLA if the following criteria are met: (1) the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; (2) the telemedicine visit is permitted and accepted by state licensing authorities; and (3) generally, the telemedicine visit should be performed by video conference. Communications such as “a simple telephone call, letter, email, or text message” remain insufficient to satisfy the requirement of an “in-person visit.”

Unlike the informal guidance issued in July 2020, the FAB is indefinite and may remain in place beyond the pandemic.

If you have questions or need assistance, please reach out to a Jackson Lewis attorney.

In March 2020, when Congress passed the Families First Coronavirus Response Act (FFCRA) with a sunset date of December 31, 2020, few anticipated the COVID-19 pandemic would be ongoing into 2021. Several similar state and local laws also sunset at the end of 2020. But the pandemic has not slowed, and requests for COVID-19-related leave (along with the corresponding tax credits) continue.

Here’s What We Know

The new stimulus bill (Consolidated Appropriations Act, 2021) passed on December 27 did not extend the FFCRA obligations. Employers who were covered under the FFCRA are no longer obligated to provide their employees leave.

However, while the FFCRA does not mandate an employer continue to provide COVID-19-related paid sick and paid family leave beyond December 31, 2020, it allows employers who are covered under the FFCRA to voluntarily decide to provide “qualified” paid sick leave or paid family leave wages to their employees and continue to receive a tax credit for such wages until March 31, 2021.

Please read our full article here.

Since 1996, when Congress passed the Health Insurance Portability and Accountability Act (HIPAA), employers have been struggling with whether and to what extent they could offer incentives to employees to participate in certain “wellness programs.” The Equal Employment Opportunity Commission’s (EEOC) position on these programs has been a significant driver of those struggles, primarily due to concerns about whether such programs are “voluntary.”

On January 7, the EEOC proposed a new approach that may provide employers some certainty, particularly as many employers are wondering about incentives to encourage employees to receive a COVID-19 vaccine. Please read our full article here.

The Department of Fair Employment and Housing (DFEH), the administrative agency charged with enforcing the California Family Rights Act (CFRA), has released new documentation for Family and Medical Leave that reflects the expansion of CFRA which went into effect on January 1, 2021.

These new documents include the required poster for employers for both Family and Medical Leave as well as for Pregnancy Disability Leave.

Employers should be sure to update their posters and new hire and leave packets to include the revised information, in addition to relevant company policies and procedures pertaining to leave.

If employers need additional guidance regarding compliance with California leave laws, they can contact a Jackson Lewis attorney to discuss.

When the federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, COVID-19-related leave was no longer assured for many employees throughout the United States unless another law, like the Family and Medical Leave Act or the Americans with Disabilities Act, applies. Jurisdictions that have COVID-19-related leave laws (such as the District of Columbia and certain California municipalities), however, will continue to grant time off to eligible employees.

D.C.’s COVID-19-leave laws took effect on March 11, 2020, and are set to expire on March 31, 2021. In 2020, employers subject to both the FFCRA and these D.C. laws generally fulfilled their D.C. COVID-19 leave obligations when they provided FFCRA leave to covered employees. Now, employers with workers in D.C. should ensure they provide D.C. COVID-19 leave to covered employees who need it. For further discussion of D.C.’s COVID-19 leave laws, please see our full article.

The New York State Paid Sick Leave Law and the amendments to the New York City Paid Safe and Sick Leave Law expanding employees’ paid sick leave entitlements will go into full effect on January 1, 2021.

The state law went into effect on September 30 for the purpose of accrual of paid sick leave, and employees not previously covered by a local law can access their new sick leave banks beginning January 1.

Under the new state law and the New York City amendments:

  • Employers with at least 100 employees must provide employees up to 56 hours of paid leave each year.
  • Employers with fewer than 100 employees must provide 40 hours of paid leave.
  • Employers with up to four employees must provide 40 hours of paid leave if the company had net income of at least $1 million in the previous tax year.
  • Employers with up to four employees with a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid leave.

Read our full article here. 

On December 9, 2020, Pittsburgh Mayor Peduto signed a new ordinance granting COVID-19 Sick Time to certain employees working within the City.

Interaction with Pittsburgh Paid Sick Days Act

This ordinance supplements the Pittsburgh Paid Sick Days Act (“PSDA”), which took effect earlier this year in March.  The ordinance also amends the PSDA by expressly permitting employees to take sick time under the PSDA before it is accrued, if the reason for use arises directly from COVID-19.

Temporary COVID-19 Emergency Paid Sick Time

Pittsburgh employers with more than 50 employees must provide paid COVID-19 Sick Time to their employees for COVID-19-related reasons.  The law applies to employees who are (a) working for that employer within Pittsburgh after the effective date of this ordinance, (b) normally work for that employer within the City of Pittsburgh but are currently teleworking from any other location as a result of COVID-19, or (c) work for that employer from multiple locations or from mobile locations, provided that 51% or more of such employee’s time is spent within the City of Pittsburgh.

An employee may take up to 80 hours of leave, and this time is in addition to time under the PSDA.  COVID-19 Sick Time is also in addition to any paid leave or sick time provided by the employer, with a few caveats. An employee is to provide notice to the employer of the need for COVID-19 Sick Time as soon as practicable.

Eligible employees may take COVID-19 Sick Time leave for the following reasons, if they are unable to telework:

  1. Determination by a public official or public health authority, a health care provider, or an employee’s employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the individual is exhibiting symptoms that might jeopardize the health of others, regardless of whether the individual has been diagnosed with COVID-19;
  2. Care of a family member of the employee due to a determination by a public official or health authority, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed with COVID-19;
  3. An employee’s need to: (a) self-isolate and care for oneself because the employee is diagnosed with COVID-19; (b) self-isolate and care for oneself because the employee is experiencing symptoms of COVID-19; or (c) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19; or
  4. Care of a family member who: (a) is self-isolating due to being diagnosed with COVID-19; (b) is self-isolating due to experiencing symptoms of COVID-19; or (c) needs medical diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19.

COVID-19 Sick Time Leave Entitlement

Employees who work 40+ hours a week.  For employees who work 40 hours or more per week, their leave entitlement is 80 hours, unless the employer designates a higher limit.

Employees who work less than 40 hours a week.  Employees who work fewer than 40 hours in a week are entitled to leave in an amount equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period, whichever is greater and unless the employer designates a higher limit.  In the case of an employee whose schedule varies from week to week, the employer can use a number equal to the average number of hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type.

COVID-19 Sick Time must be provided to employees immediately, without any waiting period or accrual requirements, once they have been employed by the employer for the previous 90 days.  If an employer provided paid leave prior to the effective date of this ordinance, the COVID-19 Sick Time is in addition to that paid leave.  An employer may not change such paid leave after the ordinance’s effective date to avoid providing leave under the ordinance.

Interaction With Other Laws & Employer Policy

To the extent that federal or state law requires employers to provide paid sick leave or paid sick time related to COVID-19, employers may substitute leave under the federal or state law to meet the obligations under this ordinance to the extent they coincide and such concurrent use is permitted.  However, employers are required to provide additional COVID-19 Sick Time under the ordinance to the extent the ordinance exceeds the requirements of the federal or state law.

Similarly, to the extent that an employer has adopted a policy subsequent to the March 13, 2020 Pennsylvania COVID-19 Declaration of Emergency which provides its employees with additional paid sick time specifically for use during COVID-19, employers may substitute leave under its employer policy for the leave required under this ordinance to the extent they coincide. However, employers must provide additional COVID-19 Sick Time under the ordinance to the extent the ordinance exceeds the requirements of the employer’s COVID-19 specific paid sick policy.

The ordinance is in effect immediately now that the Mayor has signed.  Further guidance is anticipated from the City.

A link to the full text of the ordinance can be found here. The ordinance is in effect until the Pennsylvania COVID-19 Declaration of Emergency or the Pittsburgh COVID-19 Declaration of Emergency ends, whichever is sooner.  Employees may use COVID-19 Sick Time until 1 week following the official end of the public health emergency.

 

By now, employers likely have heard the news that the Centers for Disease Control and Prevention (CDC) has reduced the length of time that individuals should quarantine after an exposure to COVID-19. The old adage “Don’t believe everything you read” turns out to be true in this case. Although the CDC has stated that shortened quarantine periods may be an option in certain circumstances, the agency continues to recommend quarantining the full 14 days, absent local health authorities determining that a shorter period is appropriate.  Read our full article here.

On November 16, 2020, the Center for Disease Control (CDC) clarified its guidance permitting critical infrastructure workers to return to work before the end of the standard 14-day quarantine period following exposure to COVID-19.  In this updated guidance, the CDC reiterated its standard recommendation that all individuals known to be exposed to a person with suspected or confirmed COVID-19 should quarantine for 14 days, with the possible limited exception of asymptomatic critical infrastructure workers who have not tested positive for SARS-CoV-2 (“COVID-19”).

While earlier CDC guidance allowed critical infrastructure employers to consider allowing workers who were exposed but tested negative to continue to work when necessary to preserve the function of critical infrastructure workplaces; in the most recent guidance, the CDC clarifies what circumstances might warrant use of the exception stating “that reintegrating exposed critical infrastructure workers who are not experiencing any symptoms and have not tested positive back into onsite operations should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.”

The CDC stated it issued the updated guidance to align with new scientific evidence, evolving epidemiology and the need to simplify the assessment of risk; specifically:

  • Increased evidence that infected people pose a transmission risk without symptoms or before the onset of recognized symptoms;
  • Ongoing community transmission in many parts of the country;
  • A need to communicate effectively to the general public; and
  • Continued focus on reducing transmission through social distancing and personal prevention strategies.

The CDC explains that “[r]eintegrating exposed workers who are not experiencing any symptoms and who have not tested positive back into onsite operations carries considerable risk to other workers because many people with COVID-19 are asymptomatic but can still spread disease, and tests are imperfect. Bringing exposed workers back should not be the first or most appropriate option to pursue in managing critical work tasks. Quarantine for 14 days is still the safest approach to limit the spread of COVID-19 and reduce the chance of an outbreak among the workforce.”

The new guidance also encourages all critical infrastructure employers to work with local health officials on any reintegration of exposed workers and reiterates the additional risk mitigation precautions required including pre-screening, on-site screening with temperature checks, ongoing health monitoring, cleaning and disinfecting, social distancing, and ensuring all employees wear cloth masks.

This new guidance follows a trend we have seen in some states.  Since the initial CDC critical infrastructure worker guidance was issued in April, several states have adopted rules narrowing the circumstances under which critical infrastructure employers can allow asymptomatic exposed employees to continue to work.  For example:

  • In New York, employees who are exposed to COVID-19 but remain asymptomatic can continue to work if “deemed essential and critical for the operation or safety of the workplace, upon a documented determination by their supervisor and a human resources representative in consultation with appropriate state and local health authorities.”
  • In Wisconsin, the Department of Health has not endorsed exposed, asymptomatic workers returning to work before a 14-day quarantine period, however, local health departments in Wisconsin are allowed to grant case by case exceptions.
  • In New Mexico, if an essential business would be forced to cease operations due to the quarantine of exposed, asymptomatic workers, then such workers may continue working if they test negative for COVID-19 and certain safety measures are met.

In light of the new CDC guidance, critical infrastructure employers should consider reviewing their policies and procedures for returning asymptomatic exposed employees back to work, keeping in mind that state and local orders, and guidance from state and local health departments and safety agencies, may impose different and more restrictive requirements. Among other things, employers should consider:

  • Articulating and documenting the impact on operations such as how and why business operations might cease and, if applicable, the potential impact on health and safety if exposed, asymptomatic employees are held out of work for a 14-day quarantine period.
  • Consulting with the local health departments on the reintegration of exposed workers.
  • Developing plans and protocols to implement additional safety precautions, including pre-screening, health monitoring, and preventive measures.

As always, employers must also continue to comply with all applicable federal OSHA and state equivalent workplace safety requirements.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

 

With a difficult 2020 nearing its end, if Connecticut Paid FMLA has recently reappeared on your radar, don’t fret!  Simply review the below basics to prepare for this upcoming change.

As a reminder, last summer (i.e., an eternity ago), Connecticut enacted two separate laws—one creating a paid leave benefit and the other amending, and expanding, the existing Connecticut Family and Medical Leave Act (CT FMLA). Employers must keep this statutory setup in mind, as certain provisions are unique to each of the two laws. For example, applying for and receiving the paid leave benefit, by itself, does not entitle the employee to job protection. Job protection will continue to be governed by the provisions of the CT FMLA, as amended, and other applicable laws.

Key Dates:

  • November 2020: employers may begin registration process for online accounts with the Connecticut Paid Leave Authority
  • By December 31, 2020: register with the Paid Leave Authority
  • January 1, 2021: employee payroll withholdings (0.5%) begin for the paid leave benefit
  • March 31, 2021: deadline for employers to submit first quarterly payment of withholdings to the Paid Leave Trust
  • January 1, 2022 (or before): Connecticut Department of Labor will provide guidelines for the expanded CT FMLA
  • January 1, 2022: expansion of covered employers, employees, and reasons for CT FMLA leave is effective
  • January 1, 2022: paid leave benefits available

 Paid Leave Benefit:

  • Applicable to nearly all employers and employees in Connecticut. No minimum tenure requirement, but employees generally must meet minimal earnings threshold for eligibility.
  • Funded by a 0.5% employee payroll tax (up to the Social Security contribution limit of $142,800 for 2021). No notice requirement regarding the withholding, but employers should consider communicating with employees to avoid a surprise in January 2021.
  • Generally provides up to 12 weeks of paid leave for reasons covered by the amended CT FMLA as of January 2022. An additional 2 weeks will be available for an incapacitating serious health condition related to pregnancy.
  • Paid leave benefit available January 2022, with maximum weekly paid leave compensation at $780 (60 times the minimum wage as of that date).
  • Employees may receive the paid leave benefit concurrent with “employer-provided employment benefits,” if the total does not exceed the employee’s regular pay. It is unclear at this time how the paid leave benefit will interweave with employer benefits.
  • Creates a paid intermittent leave entitlement.
  • Employers may apply for an exemption by offering a private plan, which must meet various criteria. Importantly, prior to application to the state, the plan must be approved by a majority of all the employer’s employees in Connecticut.

Expansion of CT FMLA Coverage:

Current law Law as of 1/1/22
Employer coverage 75+ employees 1 employee
Covered family members for “care” leave Spouse, child, or parent Spouse, child, parent, grandparent, grandchild, sibling, and any other “individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships”
Tenure requirement for job protection under CT FMLA 12 months and 1,000 hours Three months (this tenure minimum does not apply to paid benefits, which are generally available upon employment)
Total leave entitlement 16 weeks in a 24-month period 12 (or 14) weeks in a 12-month period

Jackson Lewis attorneys will continue to track developments and provide updates. If you have any questions, contact the Jackson Lewis attorney with whom you regularly work.