When it comes to disability and leave management, the past year has been one HR hurricane after another. Everything is different, including our Annual Disability & Leave Management Symposium. We know you are as frustrated as we are. We wanted to have an old fashioned, in-person conference, but in the interest of social distancing we’ve decided to shake (not stir) things up. That’s why we have converted our annual symposium into a two-part “Happy Hour” series. End your day on a high note as we cover the following topics over two days:

The COVID Impact on Disability and Leave Management Law:  Hindsight Is Always 20/20, Isn’t It?  

In Case You Missed It: Beyond COVID-19

You’ve Got Questions, We’ve Got Answers 

Details and directions to register are available here.

Philadelphia workers who are not covered by federal sick leave laws, such as the Families First Coronavirus Response Act (FFCRA), are entitled to paid sick leave benefits under the new public health emergency leave bill (amending Chapter 9-4100 of the Philadelphia Code) signed by Mayor Jim Kenney. The new leave requirements remain in effect until December 31, 2020, unless renewed. Read our full article here.

California wrapped up its 2020 Legislative Session with the Governor passing several bills that bring dramatic changes to employee leave requirements.

One of the first bills signed was Assembly Bill 1867, the statewide COVID-19 supplemental paid sick leave.  AB 1867 fills in some of the exceptions contained in the Families First Coronavirus Response Act and provides up to 80 hours of paid leave to full-time employees.  Part-time employees and those who work on a variable schedule receive pro-rated benefits.  Prior to the passage of AB 1867, several cities and counties had passed local ordinances providing supplemental sick leave for COVID-19 purposes.  AB 1867 accounts for these local ordinances and provides for credits for leave provided under these ordinances.  AB 1867 also codified an earlier Executive Order which provided food sector workers with COVID-related leave.

The Governor signed Senate Bill 1383  which expanded the California Family Rights Act (“CFRA”) to apply to employers employing 5 or more employees. The CFRA, similar to the Family Medical Leave Act, previously authorized eligible employees of employers with 50 or more employees to take up to 12 weeks of job-protected leave. SB 1383 also lists additional reasons for which CFRA leave is available.  Beginning January 1, 2021, employees may use CFRA leave to take time off to care for a grandparent, grandchild, or sibling with a serious health condition or because of a qualifying exigency related to the employee’s call to active duty or the call to active duty for certain family members in the Armed Forces.  Currently leave is only available for the employee’s own serious health condition, to care for a parent, spouse, domestic partner, or child with a serious health condition and to bond with a new child.  To complement this expansion of the CFRA, Assembly Bill 2399, adds qualifying exigency leave as a reason for receiving wage replacement benefits from the California Paid Family Leave Program (employees are currently eligible to receive wage replacements benefits if they were on an approved leave to care for a grandparent, grandchild or sibling).

The Governor also signed Assembly Bill 2992, which imposes further limitations on employers from discharging, discriminating, or retaliating against an employee who is a victim of crime or abuse. Before the passage of this legislation, under Labor Code section 230, employers were eligible to take time off if they or an immediate family member were a victim of certain violent crimes or felonies. AB 2992 expands the types of crimes that may qualify an employee for leave to include those which caused a physical or mental injury, or a threat of physical injury, regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.

Employers with workforces in California should review their current policies that may be affected by these changes, especially with respect to the new supplemental paid sick leave, as that was an urgency ordinance that went into effect for non-food sector workers on September 19, 2020. All other bills go into effect on January 1, 2021.

If you have questions about these or other new California bills, contact a Jackson Lewis attorney to discuss.

Changes to New York City’s Paid Sick and Safe Leave Law (NYCSL) took effect on September 30, 2020.

On September 23, 2020, the New York City Council enacted Int. No 2032-A, and Mayor Bill de Blasio signed the bill on September 28, 2020.

Most of the modifications comport the NYCSL with New York State’s Sick Leave Law (NYSSL), which also became effective on September 30, 2020. See our article New York State’s New Paid Sick Leave Law Goes Into Effect September 30, 2020. However, the amendments to the NYCSL also impose additional requirements on New York City employers.

Read our full article here.

As the January 1, 2021, effective date of Maine’s Earned Paid Employee Leave Law approaches, the state Department of Labor (DOL) has promulgated the much-anticipated final regulations for implementing the statute.

Under the law, private employers with at least 10 employees in Maine must provide employees one hour of paid leave for every 40 hours worked, up to a maximum of 40 hours of paid leave per year, for any reason.

As is often the case, the DOL’s regulations answer some questions, but leave others unaddressed.

Read our article.

California employers with as few as five employees must provide family and medical leave rights to their employees under a new law signed by Governor Gavin Newsom on September 17, 2020. The new law significantly expands the state’s existing family and medical leave entitlements and goes into effect on January 1, 2021.

Senate Bill 1383 (SB 1383) also expands the covered reasons for protected leave and the family members whom employees may take leave to care for under the law.

Read the full article on Jackson Lewis Publications Page.

The New Jersey Department of Labor and Workforce Development (NJDOL) has issued final regulations related to the COVID-19 Job Protection Act signed into law on March 20, 2020.

The law generally protects employees from adverse actions when they take or request time off at the written or electronic recommendation of a medical professional licensed in New Jersey, because they have or are likely to have an infectious disease that may infect others in the workplace. Read our article here.

Last month a New York federal court left health care providers in a lurch, when it vacated the Department of Labor’s definition of who could be exempted as a health care provider from the FFCRA leave obligations. Thankfully, the DOL has stepped back in to provide further clarity on this issue, providing revisions and clarifications to its FFCRA Temporary Rule. For more information about the revisions, click here.

The FFCRA which requires certain employers to provide paid sick leave and expanded FMLA to its employees provides an exception for health care providers. Under the revised rule, the DOL explains that the health care providers that an employer can elect not to cover under the FFCRA include:

  1. Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
  2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the State and performing within the scope of their practice as defined under State law;
  3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
  4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
  5. Any other employee who is capable of providing health care services, meaning he or she is employed to provide:
    • diagnostic services (taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results);
    • preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);
    • treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments);
    • or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).

The revised rule further explains that the types of employees falling under this last category include only:

A.  Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in 5 above;

B.  Employees providing services described in 5 above under the supervision, order, or direction of, or providing direct   assistance to, a person described in numbers 1-4 above or A above; and

C.  Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

The DOL further clarified that employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

The revised Rule recognizes that individuals who fall under this health care provider exemption may work, among other places, at a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. But the DOL explained that an employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an employee is a health care provider.

The DOL’s revised Rule provides welcome relief and clarity to employers. Although it is not immune to further legal challenge, the DOL appears to have addressed the issues raised by the New York court. Employers are nonetheless wise to seek legal counsel with respect to how the various FFCRA requirements might apply in an individual circumstance.

Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.

The Department of Labor has issued revisions and clarifications to its FFCRA Temporary Rule in response to the New York federal court’s decision vacating some of the provisions of the earlier version of the Rule.

Summary of Revisions.

In its revised rule and clarifications, the DOL:

  • reaffirms that the emergency paid sick leave and expanded family and medical leave under FFCRA may be taken only if the employee has work from which to take leave. (The temporary rule also clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.)
  • reaffirms that an employee must obtain the employer’s approval to take emergency paid sick leave or expanded family and medical leave intermittently, but explains the difference between intermittent and additional requests for leave.
  • revises the definition of “health care provider” to mean employees who are health care providers under 29 CFR 825.102 and 825.125 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. See our separate post about this.
  • revises § 826.100 to clarify that the information the employee must give the employer to support the need for leave should be provided to the employer as soon as practicable.
  • revises § 826.90 to clarify that notice of expanded family and medical leave must be provided as soon as practicable.

Leave is only available if a qualifying reason was the but for cause of the employee’s inability to work.

The DOL took issue with the reasoning of the district court and reaffirmed that all leave under the FFCRA is only available if the employer has work available for the employee. In other words, an employee may take paid sick leave or expanded family and medical leave only to the extent that a qualifying reason for such leave is a but-for cause of his or her inability to work. The DOL explained that “if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave – perhaps the employer closed the worksite (temporarily or permanently) – that qualifying reason could not be a but-for cause of the employee’s inability to work.” In support of its position, the Department stated that it “sees no textual basis or other persuasive reason to deviate from the standard meanings” of the terms “because” and “due to” which were used in the statute. It further stated that the term “leave” “is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.”

DOL clarifies when leave is intermittent and must be approved by the employer.

While the Department reaffirmed that intermittent leave could only be taken with the approval of the employer, it also explained the difference between intermittent leave and consecutive requests for leave. According to the DOL, “the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.” Each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens again for the particular student. “The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that).” However, if the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule, this would constitute a request for intermittent leave that would require his or her employer’s agreement.

The DOL’s revised Rule provides welcome relief and clarity to employers. Although it is not immune to further legal challenge, the DOL appears to have addressed the issues raised by the New York court. Employers are nonetheless wise to seek legal counsel with respect to how the various FFCRA requirements might apply in an individual circumstance.

Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.

On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”) which has three new laws combined into one bill. The bill covers supplemental sick leave requirements, a pilot mediation program for small employers, and mandated hand washing requirements for food workers.

Read the full article on the Jackson Lewis California Workplace Law Blog.