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Tag: FMLA

DOL Revisions to FFCRA Regulations: What You Need to Know

September 25, 2020

The Families First Coronavirus Response Act (FFCRA) Regulations were promulgated by the US Department of Labor to implement the FFRCA. Our Employment Law Blawg summary of the FFCRA is here. In response to a ruling from the U.S. District Court in the Southern District of New York, the initial regulations effective on April 1, 2020 were replaced effective, September 16, 2020. Here’s what you need to know about the revisions.

Changes to the regs were deemed necessary to improve the process of taking and requesting paid leave, including the availability of leave and related terms. The DOL aimed to achieve consistency and clarity throughout the regs, and in that vein, the new revisions were outlined to provide the following:

  • Reaffirmation that employees can only take FFCRA leave if and when work is available to them. That is, if someone is on a work reduction layoff, they cannot claim FFCRA leave because there is no work available at the moment.

  • Reaffirmation that employer approval is required for all intermittent leave taken under FFCRA. Failure to seek employer approval will result in denial of FFCRA leave benefits.

  • Clarification that supporting documentation should be provided as soon as possible. Employees must do their due diligence to provide employers with paperwork substantiating their eligibility for leave as quickly as they can when requesting FFCRA leave.

  • Correction of inconsistencies on the circumstances in which employees are required to notify or request permission from employers for FFCRA leave, or any leave related to expanded family and medical needs.

  • Revision of the definition of the term “health care provider”to be defined as “only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.”

In sum, the newly revised FFCRA regs now defines the parameters for which employees have to request leave, or whether they can take leave without substantiated requests. It also clarifies some of the definitions outlined in the previous publication and it corrects inconsistencies to provide clearer guidelines for employers to follow when handling employee leave related to the coronavirus pandemic.

As the world has begun to reopen and the economy to rebound, employment laws must keep pace. However, it is a constant battle of finding balance, so future updates are to be expected as things continue to evolve.

Currently, employers and employees alike need concise, clear policies manage the public health crisis’ impact on their day-to-day operations, including staffing. The new regs are a good place to start with developing those policies for your organization today.

Summary of the Families First Coronavirus Response Act (FFCRA) Paid Time Off

April 20, 2020

The federal Families First Coronavirus Response Act was signed into law on March 18, 2020 by President Donald J. Trump. It became effective on April 1, 2020 and is set to expire on December 31, 2020. The Act amends the federal Family Medical Leave Act to create two types of leave which did not exist previously. The law cannot be applied retroactively, thus it is applicable only to leave that was taken on or after its effective date.

The Act applies only to private businesses who employ less than 500 persons in the United States of America. While employers are to be granted tax credits which will provide reimbursement for wages paid and the cost of continuing health and medical benefits during the leave periods, employers of fewer than 50 persons can obtain an exemption if complying with the Act would jeopardize their continuation as a “going concern”.

Federal Paid Sick Leave Act (FPSLA)

First, the Act creates the Federal Paid Sick Leave Act (FPSLA). This FPSLA provides up to two (2) weeks paid sick leave for employees who have been employed for any duration of time and require leave for the qualifying covid-19 related reasons. Leave would be paid at full wages for one’s own mandatory quarantine, health care official recommended self-quarantine, and presence of covid-19 symptoms. Also, leave would be paid at partial wages for caring for a family member or roommate who is quarantined, undergoing a health care official recommended self-quarantine, caring for children under the age of 18 (or over the age of 18 but unable to care for self due to disability) whose caregiver or school is unavailable due to the pandemic, or similar condition.

Full pay is defined as the employee’s regular rate of pay up to $511 per day and $5,110 in the aggregate. And, partial pay is defined as two-thirds of the employee’s regular rate, up to $200 per day and $2,000 in the aggregate. Part time employees refer to employees who work anything less than forty (40) hours in a work week. For those who have variable schedules, an employer may use the daily average over the prior six (6) months to compute the average. 

Employers are prohibited from requiring an employee to use other forms of paid leave or from altering their existing paid leave, before granting an employee leave under the Act. EPSLA leave can be taken in addition to any paid leave program a covered employer may already have in place, as well as any paid sick leave benefits an employee may be entitled to under any other federal, state, or local law, or a collective bargaining agreement. Employers are also prohibited from requiring the employee to provide another employee to fulfil their job duties in their absence. Lastly, employers are also prohibited from all forms of retaliation or discrimination against an employee for having exercised their rights under the Act. Penalties for failure to provide this paid leave is viewed by the US DOL as a failure to pay minimum wages.

 Employers are required to post or email the notice of the rights poster under the Act. Employer are not required to pay out any unused leave upon separation. 

Emergency Family and Medical Leave Expansion Act (EFMLEA)

Secondly, the Act creates a new qualifying reason which is the Public Health Emergency Leave to situations where an employee is unable to work because the employee must care for his or her son or daughter (as defined under the FMLA) whose school is closed or whose childcare provider is unavailable due to a public health emergency; the Emergency Family and Medical Leave Expansion Act (EFMLEA). This law provides up to twelve (12) weeks of leave paid time off work. The first two (2) weeks of leave would be unpaid, then the following ten (10) weeks of leave would be paid at partial pay which is two-thirds the employee’s regular rate of pay based on hours regularly scheduled to work. EPSLA as described above may be used for first two otherwise unpaid weeks of leave. An employee may elect to use accrued leave for this two week period, but the employer cannot require its use.

EFMLEA is available for employees who have been on the employer’s payroll for 30 of the prior 60 days. However, this leave time may be denied to health care workers and emergency responders, regardless of their tenure. EFMLEA can be used on an intermittent basis.

Employers may require or elect that other types of leave run concurrently. For instance, EFMLEA leave time counts towards the old FMLA leave time. However, if concurrent with other types of leave, then the employer must pay the greater of the two rates of leave. Wages are capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA. 

Employees are entitled to job protection under the Act, meaning that employers are required to return employees to the same or similar position they occupied prior to taking leave. However, employers may qualify for an exemption from reinstatement if the employer has fewer than 25 employees. 

Similar with the EPLSA, employers are prohibited from interference with this right and prohibited from retaliation or discrimination against any employee for exercising these rights.

The Act does not provide an individual right of action to include civil damages in a lawsuit against employers with fewer than 50 employees in 75 mile radius.  

Employees are required to provide notice to the employer of the need for leave, as soon as is possible. However, they are not required to utilized DOL forms. For various reasons, including in order to obtain the promised tax credits, however, employers should retain some documentation to support the circumstances warranting leave and its granting of same.

In closing, two frequently asked questions are worthy of note:

  1. Telework is work – it is not leave. Thus, all accounted for teleworking hours must be compensated. 

  2. The FFCRA applies to circumstances which make the employee unable to work, whether or not there is work available. The determinative question is: would the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order for themselves, their child, etc. 

Read all the regulations, fact sheets and updates as they happen here.

 

10 Steps to FMLA Compliance

October 26, 2018

         Employer requirements for the Family Medical Leave Act (FMLA) may seem straightforward, but managing them, including keeping up with current government regulations and handling all the necessary administration is challenging and overwhelming. The FMLA is filled with legal implications that companies must completely understand. The paperwork alone can be overwhelming for the human resources and benefits departments. Moreover, federal and state laws often overlap, which further complicates the administration of the FMLA. A company that fails to comply with the FMLA subjects itself to costly litigation. Furthermore, there have been cases in which a direct supervisor was personally sued by an employee for failing to comply with FMLA laws. 

         Therefore, it is important to have the knowledge and resources to monitor and understand the applicable laws to ensure that the company is in compliance with the FMLA. The following ten best practices will help your company ensure compliance with the FMLA.

1.   Stay updated on the laws.If a company operates in more than one state, the company must ensure that in addition to being in compliance with the federal version of the FMLA, the company must also be in compliance with the state law version of the FMLA.

2.   Establish FMLA procedures and consistently apply them.One of the biggest mistakes companies make is delegate several people within the company to administer the company’s family medical leave practices. Therefore, ongoing training and having specific procedures in place for how your company will manage the FMLA can help alleviate these issues. 

3.   Require medical certification from the health care provider to validate that the leave is necessary. Under the FMLA laws, employers have the right to require that the employee secure a medical certification. Employers must allow employees at least 15 days to obtain the proper medical certification and provide it to the employer. Without a completed medical certificate, FMLA requested leave can be denied.

4.   Document everything.Every interaction, including every telephone call with the employee who is out on leave should be documented. This practice reduces confusion as to policies and sets forth what information has been shared with the employee.

5.   Educate management.The company supervisors must understand their role when one of their employees’ requests leave under the FMLA. Companies should also consider “just in time knowledge.” This just in time practice requires that supervisors immediately notify the benefits manager when an employee requests FMLA. 

6.   Consider allowing supervisors to directly communicate with employees while they are on leave.Allowing a supervisor to reach out to an employee who is out on FMLA has huge benefits. For example, it builds morale as this practice demonstrates that the manger cares about the well being of the employee and their situation. Consequently, this sets up the employee to feel good about returning to work. 

7.   Gather the stakeholders. The company is responsible for following FMLA laws. Although the responsibility primarily falls within the duties of the human resources and legal teams, payroll, finance and benefits also have an important role and all of these teams should meet periodically to assess how the program is being administered. 

8.   Review your company’s leave policies regularly. At least once per year, the company needs to review their policies and the relevant paperwork associated with the administration of the FMLA. 

9.   Maintain confidentiality. It is illegal for employers to share any information about the employee’s medical condition. 

10. Consider outsourcing. An outside firm can assist your company determine employee eligibility and to review the associated paperwork.

Case Summary: Pregnancy Discrimination Act Protects Breastfeeding

September 27, 2017

In STEPHANIE HICKS v. CITY OF TUSCALOOSA, ALABAMA, the 11th Circuit Court held that the Pregnancy Discrimination Act (PDA) guarantees women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences – including breastfeeding.

Stephanie Hicks brought this civil action against the Tuscaloosa Police Department under the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA). Ms. Hicks worked first as a patrol officer and then as an investigator on the narcotics task force. When she became pregnant she requested assignments that prevented late night work and weekend work, this was granted but only after being demoted only eight days after returning from FMLA leave. Hicks overheard multiple conversations in which officers of the police department used defamatory and sexist language about her. After the baby was born, Ms. Hicks requested accommodations that would have allowed her to breastfeed in the workplace and would have excused her from duties which required wearing a vest that according to her doctor could cause a breast disease that would inhibit breastfeeding. These accommodation requests were denied.  Ms. Hicks viewed these actions as a constructive discharge and filed suit.

Ms. Hicks prevailed at a jury trial wherein she was awarded $161,319.92 plus costs and attorney fees. The City appealed but the 11th Circuit Court, of which the State of Georgia is included, affirmed the decision.

The Court stated the important legal tests as follows:

  • The PDA amended Title VII to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” – the ultimate question is “whether the evidence, when viewed as a whole, yields the reasonable inference that the employer engaged in the alleged discrimination.

  • Under the FMLA the ultimate questions are whether: “(1)Hicks availed herself of a protected right under the FMLA; (2) [s]he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision.

In application of these tests to the facts as summarized above, the Court concluded there was ample evidence that Hicks was both discriminated against on the basis of her pregnancy and that she was retaliated against for taking her FMLA leave. Furthermore, the Court found that the PDA covers discrimination against breastfeeding mothers and the City’s failure to accommodate Hicks’s requests, when it allowed accommodations to others similarly situated, constituted discriminatory constructive discharge, in violation of the PDA.

Quick Tips: US Department of Labor Advisory Opinions

August 20, 2017

Avoid misinterpretations of the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”), and other federal wage and hour laws by seeking guidance directly from the U.S. Department of Labor. 

The US DOL Wage and Hour Division will now recommence the issuance of opinion letters on the application of these federal laws to an anonymous employer’s unique circumstances. The opinion letter becomes publicly available and can be fully relied on as a defense to wage and hour claims. 

Few useful facts about the Opinion Letter:

  • Response to applications are excessively delayed
  • Division exercises full discretion on which letters will receive a response  
  • No privilege applies to shield opinions from trade secret disclosures, pending audits, litigation and personal privacy, however, an attorney client privilege would be available if your attorney completes the application