The FMLA was enacted in 1993, way back when fax machines had just begun ruling the world and we were only learning how to send an email to a friend. When the law was passed, FMLA didn’t contemplate a remote workforce, let alone one that would be hastily relegated to their homes during a global pandemic three decades later.

For well over a year, many of your employees have been working from home. Some report to a manager at the headquarters or worksite. Plenty of your remote employees, however, report to an individual who also is working remotely. And that employee is reporting to, well, you get the picture . . .

Let’s assume you have an outstanding employee, Terry, who works at your Texas-based company. He also suffers from a debilitating medical condition. Terry realizes life is far too short, so he plans to work for you full-time over the next year out of his RV. He is spending summer 2021 in sunny Florida, the fall in Massachusetts to watch the leaves turn, and then the winter with his extended family in New Jersey, beginning after Thanksgiving.

Assuming Terry needs medical leave at any point during this journey, is he eligible for FMLA leave?

What about state leave laws? Do they apply, too?

First up, FMLA

Remember, to be eligible for FMLA leave, an employee must work at a worksite where 50 employees work within a 75-mile radius. That’s fine if Terry is working out of the company HQ in Texas. But what happens when he hits the road in his RV?

The FMLA regulations give us an initial framework here:

An employee’s personal residence is not a worksite in the case of . . . employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

As an important aside, has anyone ever heard remote work being called “flexiplace”? Yeah, me neither.

In any event, for purposes of FMLA, Terry’s eligibility is determined not by the location of his RV, whether in Florida, Massachusetts or New Jersey. Rather, in a telecommuting arrangement from his RV, his worksite is the office to which he reports and from which assignments are made.

Assessing Terry’s eligibility is fairly straightforward if he reports to and receives assignments from the Company’s Texas HQ, which accounts for 65 employees. That’s easy – he is included in the Texas HQ count, and he would be eligible for FMLA leave if he otherwise has worked for the Company for 12 months and 1250 hours in the previous 12 months.

The FMLA puzzle gets fuzzy, however, if Terry’s boss is working remotely from his own home in Oklahoma (or heck, even in a different RV roaming the countryside). Is Terry still reporting to and receiving assignments from Texas? Clear as mud, right? As to this conundrum, neither the Department of Labor nor the courts have given us any guidance on how we apply the regulations in this remote work scenario.

There are good arguments on both sides of the issue, but it seems to me that “office” to which Terry reports remains in Texas, even if the assignments might be coming from the boss in Oklahoma. The spirit of the regulations suggest that we’re still looking to Texas as the work location because of the reference to the “office” in the regulations.

What About State Leave Laws?  What Laws Apply and When?

My head hurts, and I haven’t yet addressed which state leave laws apply to Terry during his jaunt across the country.  Thankfully, one of my Littler colleagues, Amber Spataro, did the heavy lifting for me.

Terry and his RV actually are Amber’s concoction, though a typical scenario that could play itself out in real life.  In analysis she provided recently in a “Dear Littler” letter, Amber analyzed the state leave law issues this way:

Terry also may be covered by state leave laws, should a covered event occur. For example, Massachusetts has a Paid Family Medical Leave Act (PFML). Unlike FMLA, to be eligible to receive paid leave under PFML, a worker only must have earned at least $5,400 in the previous 12 months. PFML eligibility is not dependent on how long an individual has worked for a current employer – it applies to all W-2 employees working in Massachusetts (which Terry may be for the part of the year that he is working in Massachusetts). If Terry falls ill after earning more than $5,400 as a Massachusetts employee, he may be covered, and you may be required to withhold pay from his paycheck to fund this benefit. Similarly, New Jersey’s Family Leave Act (NJFLA) applies to employers of 30 or more employees anywhere in the world and employees working in New Jersey who have been employed by the employer for at least one year and have worked at least 1,000 hours in the past 12 months. NJFLA allows up to 12 weeks off for an employee to, among other things, bond with a new child or care for a covered family member, but does not apply to one’s own disability or injury. Therefore, if Terry falls ill while in Massachusetts and uses his 12 weeks of FMLA leave and Massachusetts PFML for his own illness, when he arrives in New Jersey in November, he may have up to 12 weeks of time off still available to him under the NJFLA if his mother falls ill and he needs to care for her. He also may be eligible for New Jersey Family Leave insurance benefits through the state, and you may need to fund such benefits as well.

Whoa, Amber, my head is spinning!

Insights for Employers

When it comes to a remote employee’s eligibility for FMLA or state leave law, you must ensure you have policies and procedures in place to stay compliant with the law. While many employers have a remote work or telework policy already in place, these arrangements have (until now) applied only sporadically and on a smaller scale. Importantly, remote work programs of the past likely neglected to address the fundamental differences between mandatory telework (at the employer’s direction) and voluntary telework (at the employee’s request).

Additionally, it’s also critical that you require employees to notify you whenever they will be working from a different jurisdiction, as you will need to track whether they are entitled to a statutory leave of absence under the laws of the state/city in which they are performing work.

Here are a few resources to keep in mind as you are working through these issues:

  • Put Remote work policies and agreements in place.  Our Littler Remote Work Toolkit for Employers contains a Guide, Model Policy and Model Agreement for companies to use when implementing remote work and telework programs in the pandemic and post-pandemic era.  Contact me for more details.
  • This issue ain’t going away. The results of our Littler annual survey make clear: employees want remote and hybrid work, and it’s not going away.  As such, it’s critical that employers consider a structure for remote work moving forward. Among other things, these decisions will implicate leave of absence issues.
  • International remote workers. What laws apply when a wandering worker wishes to telework from abroad for personal reasons? Get our take here.

One last thing: If you’re dealing with remote employees issues, you clearly are dealing with payroll tax questions. Most states require an individual to pay state income tax if they are living in the state for more than 183 days (roughly half the year). But there are exceptions to the general rule you need to know about. For a great explanation of the payroll tax issues involved with remote employees, click here for my colleague Will Weissman’s take on the issues you should be thinking about.

Christmas in July might just exist after all!

Give yourself and your loved ones the gift of three riveting — and, more importantly, free — webinars throughout the month of July that will tackle all things FMLA, ADA and paid family and medical leave.

You want some practical strategy for fighting FMLA misuse?  I’ve got your back!  You need to get a handle on the proliferation of paid Family and Medical Leave laws and how they affect your business? Two of my Littler colleagues have you covered!  You’re curious about possible ADA accommodations you may need to provide employees as they return to the office? Don’t miss a DMEC webinar later this month!

Webinar #1: Best Practices for Managing Intermittent FMLA Leave

Managing intermittent FMLA leave is a pain point for HR teams – one that trips up even the most experienced HR professional. On Wednesday, July 21 (2pm ET), I will join Angela Ripper and Michelle Davidson from Unum to provide practical suggestions on how you can effectively manage intermittent FMLA leave in your workplace, focusing on the steps you can take to root out and minimize FMLA misuse.

In this SHRM-sponsored webinar, we will outline how to effectively use certification and recertification to manage intermittent leave and respond to FMLA misuse, document FMLA effectively to curb FMLA misuse, and implement must-have personnel policies to manage intermittent leave and prevent FMLA misuse.

We’ll laugh. We’ll cry. We likely won’t sing (that’s what my annual webinar in December is for), but we’ll definitely have fun.

Register here.

Webinar #2: An In-depth Look at Paid Family and Medical Leave Programs

As more statutory paid leave programs pass and the program designs vary, you can no longer be a true expert in leave without understanding the statutory paid family and medical leave programs. The leave landscape has changed and paid leave is no longer a rare phenomenon but is rather becoming part of every leave conversation.

And there is no one better to help you wade through these issues than two of my fabulous Littler colleagues, Ellen McCann and Deidra Nguyen.

One hour before our above webinar on July 21 (1pm ET), Ellen and Deidra will detail the history of these PFML programs, how the laws work, the details behind each of the programs, what obligations remain with employers even if the state or an insurance company is administering the program and how they integrate with other paid and unpaid leave laws.

A must attend! Register here.

Webinar #3: Return to the Workplace and ADA Considerations

Employers everywhere were impacted by the pandemic, most notably by the massive shift from in-office work environments to a work-from-home model. As offices begin to reopen, it’s critical that employers have a plan in place for employees returning to the office, especially where ADA accommodations may be required.

On July 27 (12pm ET), join my friend, Jennifer Limon from AbsenceSoft, and executives from Panera Bread and Gonzaga University (go Zags!), who will share their return-to-workplace plans and best practices for a successful return, and what employers should consider when developing a plan for returning employees to the office.

Register here. [Free to members of the Disability Management Employer Coalition.]

If this stuff won’t light an FMLA and ADA fire in your belly, nothin’ will, my friends.  See you there!

I’ve often wondered — in fact, even discussed with clients — whether an employer could safely approve an employee’s FMLA-related absence and discipline the employee because he failed to timely report the absence.

I’ve theorized that an employer could pull off both because the discipline punished the late call-in, not the FMLA leave.

But I’ve never had a case supporting my wild theory.

Till now.

Let me explain Daphne’s story.

Daphne was a flight attendant who suffered from a chronic vein issue that caused bad circulation, which led to bad swelling and a whole lot of pain. As a result, she sought intermittent FMLA leave when she had flare ups of her condition.

Year after year, Daphne would certify her FMLA leave and she’d take nearly all her leave. Like clockwork.

Then, two things happened:

  1. After Daphne sought a new period of FMLA leave , the airlines recertified her medical condition. Despite ample time to return recertification, Daphne failed to do so, resulting in denial of her FMLA leave for one of her absences.
  2. On still another occasion, Daphne sought intermittent FMLA leave for her condition. When reporting her absence, however, she failed to follow the employer’s call-in procedures requiring employees to report their need for leave at least three hours before a shift.  Despite her tardy call-in, she provided medical certification to support her need for FMLA leave.  As a result, the employer granted Daphne’s FMLA leave request, but disciplined her for failing to follow the three-hour call-in procedure.

Notably, the discipline issued for Daphne’s late call-in was a key component in her eventual termination. Daphne filed an FMLA lawsuit, which promptly was booted by the trial court.  Reed v. Delta Air Lines (pdf)

Insights for Employers

Daphne’s case is helpful to employers in multiple ways:

  • It is yet another reminder that an employee can (and should) be disciplined when they fail to return medical certification (and recertification). Here, despite plenty of time to do so, Daphne failed to return certification supporting her absences. As a result, her FMLA leave was denied, resulting in discipline.  No brainer, but it’s heartening to see a court remain steadfast the principle that FMLA absences must be supported by medical certification.  When the employee fails to meet her obligation, the absence is not protected by FMLA.
  • When an employee calls in an FMLA absence, but fails to follow the call-in procedures, the court here endorsed the employer’s right to designate the absence as FMLA leave, but also to discipline the employee for failing to timely report her absence. As the court noted, the discipline was issued for violating the call-in policy, not as a result of the FMLA leave itself.  Of course, we have to be careful in these situations to confirm that our employee did not have an unusual circumstance prohibiting a timely call-in, but if they cannot identify an emergency that did not allow them to call on time, this court green lights your discipline.
  • Additionally, when an employee utilizes FMLA over a period of time, she know full well what the darn rules are for calling in an absence.  If you face an FMLA lawsuit from a serial FMLA user who suddenly claims amnesia regarding call-in rules, call them out on this.  Indeed, the fact that Daphne took FMLA leave for years and should have known the call-in requirements was particularly persuasive to this court when dismissing her FMLA claim.

This court decision is worth filing away for future use, ey?  Henceforth, this double maneuver shall be called the Daphne defense!

Use it sometime.

While nearly all of you are reading up on the CDC’s latest guidance allowing vaccinated folks to shed their masks inside and out, we’re getting back to the basics here on the FMLA Insights blog.

A few of my clients have been grappling with how and when an employee recoups their FMLA leave entitlement in a new FMLA leave year after the employee has used FMLA leave throughout the year.

Such a common issue, and it can be confusing.

When tackling this issue, we first must confirm which of the four 12-month FMLA periods the employer is using.  Since the far majority of employers use a rolling FMLA year, let’s assume for now that we are using a rolling year.  Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment.  When calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

Ok, Jeff, but back to the question: When does FMLA leave already taken roll back on for the employee to use again in a new FMLA year?

If we first look to the FMLA regulations, we’ll find this is one of the few instances in the world of FMLA where the rules actually lead us to a clear cut answer, and it does so with a fairly straightforward example:

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. 29 CFR 825.200(c)

The answer: Here, the employee begins recouping time on February 1, 2009 (a new 12-month FMLA period) in the same manner and amounts it was used the previous year.

But what if the employee is on a continuous leave at the time a new FMLA leave year begins?  Let’s use the example from above: the employee used four weeks of leave beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008.  Then, the employee takes a Company-authorized ADA leave beginning on January 15, 2009 for another six weeks.

Does the employee begin to recoup FMLA leave when the calendar turns to February 1, 2009, even though the employee was on a leave of absence at the time the new FMLA year began? In a word, yes. The employee need not be actively at work to obtain FMLA leave in a new year. The FMLA entitlement begins rolling back on as of February 1, 2009, so the period of time between February 1, 2009 and when his leave ends on February 28, 2009 is newly-recouped FMLA leave in the new FMLA year.

What about the Other Methods?

If you’re still with me, let’s turn to the other 12-month methods.

Does the analysis change if the employer uses a calendar year or fixed FMLA year? It does in the sense that the employee recoups all 12 weeks of FMLA leave at the beginning of a calendar year or fixed year. And they recoup the time even though they already may be on a leave of absence at the turn of the year.

Similarly, under the look-forward method, an employee is entitled to 12 weeks of FMLA leave during the year beginning on the first date FMLA leave is taken. After that 12-month period ends, a new one begins upon the first instance of FMLA leave in that new year.

Easy, yes? Who needs life-changing CDC guidelines when we can feast on riveting FMLA calculations all day long, amirite?

If you find yourself mired in FMLA abuse, take comfort in this real-life husband and wife leave escapade.

Location:  City of Taipei, Taiwan, which maintains a law in which eight days of paid leave is provided to newlyweds. How nice.

Johnny worked for a bank in Taiwan, and was set to wed his lovely fiancée, Susie.  According to the New York Times, the twosome first married on April 6, 2020, which unlocked eight days of paid leave for Johnny. They divorced ten days later.

With an apparent change of heart, however, they got hitched a second time just a day later, on April 17, but decided marriage wasn’t for them.  At least for the moment.  They filed for a second divorce on April 28.

They repeated this song and dance two more times — marrying on April 29 and divorcing for the third time on May 11.

The fickle couple then wed for the fourth time on May 12. This time, the marriage apparently stuck. Good for them.

The on-again, off-again couple engaged in this ruse in an attempt to milk 32 days of paid leave (4 marriages x 8 paid leave days) for Johnny. Johnny even persuaded the local Labor Department to go along with the scheme, as the agency initially fined the employer the equivalent of $20,000 for denying the paid leave to the employee. It took a highly public hue and cry before the head of the labor department overturned the fine.

“I’m stunned,” commented the mayor of the local town in which Johnny and Susie lived.

Apparently, the good mayor wasn’t familiar with FMLA leave abuse over in the good ‘ol US of A. Otherwise, this attempted caper wouldn’t have fazed him.

Insights for Employers

Stay vigilant, my friends. Although no state or city in America offers paid newlywed leave, we also know full well the lengths employees go to misuse FMLA leave for their personal benefit.

How can employers minimize the chances of getting stung by FMLA leave abuse? I’ve shared some of these ideas before, but here are a number of tools that have worked for my clients as they have fought FMLA leave abuse, especially as summer nears.  Use these tools, of course, in conjunction with my “CALM” program, which I’ve highlighted in a previous post.

With that in mind, here is my Top Ten List:

1. Prepare a list of probative questions you ask all employees when they request time off. Employers, you have the right to know why your employee can’t come to work! So, prepare a list of questions that you ask your employees when they call in an absence. These will help you better determine whether FMLA is in play and if the request might be fraudulent:

– What is the reason for the absence?

– What essential functions of the job can they not perform?

– Will the employee see a health care provider for the injury/illness?

– Have they previously taken leave for this condition? If so, when?

– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?

– When do they expect to return to work?

2.  Enforce call-in procedures. Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.

As I referenced in a recent blog post, you should consider aligning your FMLA call-in policies with your regular PTO policies.

3.  Certify … and Recertify! Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, all too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave.  Keep your employees honest — require them to certify their absence and seek recertification at the earliest opportunity.   Require medical certification to initially verify the serious health condition, upon the first absence in a new FMLA year, and when the reason for leave changes.

4.  Use the “Cure” Process to your Advantage When Following Up on Certification.  Where the medical certification form does not sufficiently answer the questions posed on the form or the health care provider’s responses tend to raise doubts, employers should immediately communicate with the employee to cure the deficiencies and/or shed light on any suspect information provided in the form.  In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies.  Here, you might consider asking questions that probe further into the information you find particularly suspect. Also, seek clarification whenever the employee has failed to cure and the certification remains incomplete or insufficient.  Additionally, consider using a physician or a nurse to contact the employee’s health care provider on the employer’s behalf (but remember: you must have the employee’s permission to contact the employee’s health care provider).

5. Discuss with the Employee Your Expectations During Leave. This one is quickly becoming my favorite go to tactic. When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave. Ensure that your employee understands the call-in requirements (i.e., where to call into and what basic information you expect that the employee will provide about their need for leave), certification obligations, any check-in obligations, and your expectations for proper use of FMLA leave. These expectations should be summarized in a document that you provide your employee, who should sign off on it. This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave.

6.  Have Employee Complete a Personal Certification. This could have come in handy for the City of Chicago. Upon return from any leave of absence (FMLA or otherwise), ask the employee to complete a personal certification asking them to confirm that they actually took leave for the reason provided.  The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document. My recommended form looks like this: 7. Check in on your Employee and/or Make Them Stay Put.  Want to be really aggressive but operate within the law?  I have a handful of clients who explicitly tell employees that it is their policy to check in on the employee if they are using paid sick leave, and then they actually check in on them. Taking this one step further, some clients require their employees to remain in the immediate vicinity of their home while they are recuperating.  If they don’t follow this policy, they face discipline. Think this tactic is illegal?  Think again. One court already upheld this very approach!

8. Follow up on Patterns of Absences. Monday/Friday absences. Taking days off around a holiday to extend time off. These situations smack of FMLA abuse. If you witness a pattern of absences over even a modest period of time (e.g., over a series of weeks or in back-to-back months), we arguably have the right to reach out the employee’s physician. Here, we follow the FMLA regulations (29 CFR 825.308) and ask the employee’s physician to confirm for us whether the pattern you’re witnessing is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can obtain your own sample letters for these situations.)

9. Scheduling Medical treatment Around Your Operations. Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.

10. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy and forms are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

The reality cuts like a knife: the United States of America is one of the only countries in the world that doesn’t maintain a federal paid leave program for its workers.

Last night, President Biden made clear his desire to change this reality.

In his first address to Congress since his election, President Biden unveiled an aggressive plan to provide federal paid family and medical leave to employees at workplaces across America.

What’s the Plan?

According to a White House fact sheet, the President’s proposal, dubbed the “American Families Plan,” calls for the following:

  • The program would provide for partial wage replacement for an employee to take time to bond with a new child, care for a seriously ill loved one, deal with a loved one’s military deployment, find safety from sexual assault, stalking, or domestic violence, heal from their own serious illness, or take time to deal with the death of a loved one.  Though the fact sheet does not define these terms, it appears as though the President’s plan would expand the reasons for FMLA leave and the familial relationships involved.
  • The program would phase in paid FMLA leave over a 10-year period.  It would guarantee 12 weeks of paid parental, family, and personal illness/safe leave by year 10 of the program.
  • Employees also would receive three days of bereavement leave per year starting in year one. (This has long been sought for by a growing number of Congress members, never to see the light day.)
  • The program would provide workers up to $4,000 a month, with a minimum of two-thirds of average weekly wages replaced, rising to 80 percent for the lowest wage workers.

Why is Paid FMLA Leave Necessary?

The White House puts it this way:

Nearly one in four mothers return to work within two weeks of giving birth and one in five retirees left or were forced to leave the workforce earlier than planned to care for an ill family member. Further, today nearly four of five private sector workers have no access to paid leave. 95 percent of the lowest wage workers, mostly women and workers of color, lack any access to paid family leave.

Pretty compelling.

How Would the President Pay for the New Entitlement?

The cost is breathtaking — the price tag is $225 billion.

To pay for paid FMLA leave, the President is proposing an increase in the income tax rate for the top 1 percent of American income earners (from 37 percent to 39.6 percent). He also would increase capital gains and dividend tax rates for those who earn more than $1 million a year and would close some loopholes on the estate tax.

What’s the Likelihood of Passage?

One word to keep in mind: filibuster.  Until this proposal has the support of 60 Senators (or at least 60 who won’t stand in the way and agree to end the debate), gridlock surely will ensue. It’s one thing to pass a temporary FFCRA measure on a small number of employers during a pandemic. It’s a far different story when you’re considering permanent paid leave that presumably would cover the far majority of American businesses. At a minimum, we’re far more likely to see a compromised plan than the President’s proposal.

Still.

It’s about time, America, don’t you think?   I share many folks’ concerns about the price tag, but here’s several compelling reasons that it’s time to make paid leave of some kind the law of the land:

  1. The federal bill would significantly slow down (although admittedly not eradicate) the growing number of conflicting state and local paid medical and sick leave laws.  At a minimum, we likely would see a number of these state and local paid leave laws run concurrently with a federal mandate.  Not all, but most, would fall in line.
  2. A compromise could require employees to pay their fair share into the cost of paid leave, so it would not fall exclusively on employers or the federal government.
  3. See the compelling statistics above.  At this point in time, isn’t federal paid leave simply the right thing to do?

Tony, an employee for a medical clinic, tested positive for COVID-19. At the advice of his physician, Tony is required to quarantine for 14 days. Because he is completely asymptomatic, however, Tony scheduled no visit with his doctor, and no regimen of continuing treatment was prescribed.

Assuming Tony cannot perform any work from home, are Tony’s absences from work during the 14-day quarantine covered by the FMLA?

Your FMLA instincts are screaming out, “Come on, Jeff! There’s no continuing treatment. Tony never went to the doctor, no medicine was prescribed, and he otherwise has no symptoms. This isn’t FMLA leave!”

As the story goes, the medical clinic needed Tony back at work. So, when he was not able to return to work after six days (after reminding his employer of his advised quarantine), the medical practice terminated his employment.  He filed an FMLA lawsuit a very short time later.

In seeking to dismiss Tony’s FMLA claims, the employer argued that Tony failed to request FMLA leave and, in any event, didn’t have a serious health condition requiring FMLA leave.

The Ruling

Said the Court: Not. So. Fast.

The court refused to dismiss Tony’s FMLA claims, summing up the situation quite simply this way:

Plaintiff has alleged a request for leave. Defendants did not provide an explanation of any deficiencies in Plaintiff’s request, or allow an opportunity to cure any such deficiencies, as the FMLA regulations require. Plaintiff was fired the day after his request. Therefore, Plaintiff has adequately pled his claims of interference and retaliation under the FMLA

Check out the case here: Payne v. Woods Services Medical Practice Group

Insights for Employers

Let’s not be fooled. If an employee tests positive for COVID-19 — and even if they are asymptomatic — you should recognize this situation as a potential need for FMLA leave. It doesn’t mean the leave of absence is FMLA leave. Ultimately, the medical certification you obtain from the employee will guide you as to whether you should designate as FMLA leave.

So two steps:

  1. When the employee tests positive and must quarantine, even if asymptomatic, send the Notice of Eligibility and medical certification to be completed by the health care provider.
  2. If the employee returns a complete and sufficient medical certification advising of the need for leave from work for the quarantine period, it seems to me that the doctor’s directive along with CDC Guidance (requiring the requisite quarantine period) provide the necessary basis to designate the absence as FMLA leave.

If you fail to recognize these situations as potential FMLA leave, I worry that you fall prey to an FMLA claim just like this medical clinic did.

I know you want to hear FFCRA musings [though I’m not sure why…], but first take a look at this beauty of a ten-week old golden retriever pup, Annie, who we just brought home.

My heart is full.

Take as much time as you’d like admiring that beautiful doggy before I move on . . .

Onto the Families First Coronavirus Response Act (FFCRA)

Given that the U.S. Department of Labor seems reticent  about helping employers understand how they are to administer the “new” FFCRA, employers are left in the dark on a couple very critical FFCRA questions.  Two questions, in particular, seem pressing:

  1. Do employees get a new bucket of emergency paid FMLA leave (EFML) as of April 1?
  2. Given the uncertainty, should an employer count EFML against the 12 weeks of FMLA classic leave?

New bucket of EFML?

It’s fairly clear that, as of April 1, an eligible employee can take 10 days of emergency paid sick leave (EPSL).  It’s far less clear based on the statute, but it seems a reasonable reading of the new statute that an employee also is entitled to EFML so long as they have FMLA leave available.

Should an Employer Count EFML Against FMLA Classic Leave?

The main issue then is whether EFML also draws down FMLA classic leave.  Sadly, there is absolutely no clear answer to this query. Zilch. Nada. In the absence of any DOL guidance, here is generally what I am telling employers:

  1. First, the employer needs to understand the risk in offering EFML in conjunction with FMLA classic, given the lack of guidance.
  2. Given the uncertainty, the employer might consider choosing to provide 10 days of EPSL only, and not EFML, which ensures its risk is effectively zero.
  3. If the employer chooses not to offer EPSL or EFML, or both, the decision should be announced to employees asap so that employees know the expectations and leave entitlements. Changing your leave entitlements later may lead to employee claims that you misrepresented the leave.
  4. As to whether EFML should count against FMLA classic leave, the employer must determine its risk tolerance. If you want to play it conservatively, you provide EFML on top of any FMLA classic leave. This is a whole lotta leave, but this approach ensures no liability.  On the other, if the employer’s risk tolerance is higher, the employer should consider including EFML as part of the FMLA bank,  and EFML would draw down the employee’s FMLA classic leave.  This latter approach makes a ton of sense. As I explained in a blog post last month, it makes no sense that Congress would have intended eligible employees to obtain a bucket of 12 weeks of FMLA classic and a separate bucket of 12 weeks of EFML. The practical solution here points to treating EFML as we did in 2020 — that is, if leave is taken for a reason covered by EFML, it also counts against FMLA classic.  The approach of drawing down FMLA classic leave arguably is defensible:
    • If an employer administered EFML/FMLA this way, it arguably has not violated the law unless and until: 1) the employee has exhausted all FMLA leave; and 2) the employer denies any requested FMLA leave thereafter.  The case law is fairly clear that an FMLA violation does not occur until FMLA leave is wrongfully denied, not before then.  Practically speaking, it’s possible, in fact likely, that many of these employees will never burn through their FMLA leave during the employer’s 12-month period, so there is no harm/no foul in designating this time NOW as FMLA classic, as most employees will not exhaust FMLA leave.
    • Given the risk, though, if the employer heads down this route, it must be prepared to undo these FMLA designations if the DOL later provides guidance that we should not have counted EFML against FMLA classic.

To be clear — this advice is the best I’ve got based on what I see from the statute and in light of the lack of DOL guidance.  I welcome your feedback on how you’re approaching these questions. Let me hear from you!

Have you ever read a new law and despite something like your 68th reading of the darn thing (which might as well be in a foreign language), it’s still clear as mud?

Let me introduce you to the American Rescue Act.

More specifically, let’s chat about those provisions revising and extending tax credits to employers that provide paid sick leave and paid FMLA leave to their employees.

Whew Doggie!  This is one mess of a bill, isn’t it?

And I know y’all are struggling with interpreting what leave under the Families First Coronavirus Response Act (FFCRA) means, even after reading all these law firm online summaries.

To unpack this new law, I break down my feedback for you in three parts:

  1. General information about the new FFCRA;
  2. What seems clear to me about the provisions of the new FFCRA; and
  3. What is unclear, but also what I believe to be true based on my read of the statute, review of initial IRS off-the-cuff remarks about the law, and my ongoing discussions with my fabulous Littler colleagues who are in the trenches with me as we try to make sense of the new FFCRA and its impact on employers.

General information

Here’s what we know is true about the new FFCRA:

  • It continues to apply only to employers with fewer than 500 employees.
  • It is effective from April 1, 2021 through Sept 30, 2021.
  • It effectively continues as a tax credit statute. IT IS NOT MANDATORY ON ANY EMPLOYER. Period. Employers are not required to provide paid sick (EPSL) or paid FMLA leave (EFML), but if they do within the parameters of FFCRA, they are entitled to certain tax credits.

What Seems Clear about the new FFCRA

That first section was short, wasn’t it?  This is where it starts getting a bit murky.

The following also seems clear about the new FFCRA:

  • An employee obtains a new entitlement of 10 days of EPSL from April 1, 2021 through September 30, 2021. This is so even if they burned through EPSL (or had EPSL remaining) at any time before April 1, 2021. Similarly, if an employee burned through all his EPSL already, the employer cannot take the tax credit for any additional EPSL provided prior to April 1, 2021.
  • All the old reasons to take EPSL remain the same, but the new law has expanded the reasons for leave to also include an employee who is:

►  Obtaining a COVID-19 immunization;

►  Recovering from an injury, disability, illness or condition related to COVID-19 immunization; or

►  Seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID or the employer requested the test or diagnosis.

  • The new FFCRA expands the definition of qualifying EFML to allow EFML tax credits to be claimed for all uses of EPSL, including the old and new EPSL reasons identified above.  Put another way, the reasons for EPSL and EFML are now identical.
  • The new law increases the limit on the tax credit for EFML wages, allowing the credit on up to $12,000 in paid family leave wages. (Currently, the tax credit for EFML is limited to $200 per day, and $10,000 total per employee.)
  • For the 10 days of EPSL, employees will receive either 100% (max of $511/day) or two-thirds (max of $200/day) of pay, depending on the reason for leave. As of Day 11 (when EFML begins), employees receive two-thirds of their pay with a max of $200/day.
  • Currently, government employers, including state and local government employers, are not allowed to claim paid leave payroll tax credits. However, it seems apparent that the new FFRCA provides that certain state and local governments, as well as 501(c)(1) federal government entities, are tax-credit eligible.  As I read the new FFCRA, employers can take the credit against Medicare taxes (but any excess is treated as an overpayment that would be refunded), so this opens the door to public sector employers at the state/local level taking the tax credit for EPSL and EFML.
  • Employers are prohibited from discriminating in favor of highly compensated employees, full-time employees, or employees on the basis of employment tenure. As such, employers cannot provide different levels of EPSL or EFML on these bases.
  • Similarly, if an employer wishes to take tax credits for leave provided, it must generally comply with the requirements of the FFCRA’s paid leave mandates (as if it were 2020) when providing the employee time off.

What is Unclear, but What I believe to be True

This is where we get neck deep in muck. Nevertheless, let me take a stab at the most difficult issues arising out of this new law:

  • The new law explicitly states that employees get a new bucket of EPSL as of April 1.  But do employees also receive a new bucket of EFML as of April 1? The statutory language is not clear, but it seems apparent that Congress intended for a new bucket of EFML to be provided as of April 1, 2021, even if the language doesn’t explicitly say as much. If Congress did not intend for a new allotment of EFML, the inclusion of this section of the Act seemingly makes no sense. By its own terms, the Act indicates that employers may take the tax credits for up to 12 weeks of EFML as of April 1, so until the DOL or IRS tells us otherwise, I read this section as a new allotment of EFML. For what it’s worth, Sydney Gernstein, director of labor tax in the IRS Office of Chief Counsel, seems to agree with my take. Yesterday, Mr. Gernstein suggested that EFML begins anew as of April 1, commenting that the new FFCRA is “like getting in a new $ 12,000 from the second quarter of 2021.”
  • Can employers provide EPSL but not EFML? Again, there is no language indicating either way, but given that this Act allows employers to voluntarily provide paid leave, it follows that employers could provide one and not the other, so long as they follow the statutory language of the leave they are providing.
  • Can employers provide just a portion of EPSL or EFML, but not the entire allotment?  Nothing seems to stand in the way of providing, for instance, six weeks of EFML instead of 12 weeks. But if you’re going to stop short, I strongly encourage you to set this limit up front and communicate it to your employees. If you change midstream, you face potential claims of discrimination.  Avoid this hassle and set it at the outset.

Put aside for a moment all this madness above, here’s the most difficult question for me: Do employers run EFML against an employee’s classic FMLA entitlement? On one hand, one can argue that this is a tax credit statute only, and not a substantive leave statute, so there is no exhaustion of FMLA classic unless the absence is covered by an FMLA classic reason. After all, the new FFRCA clearly speaks in terms of tax credits. On the other hand, it makes no sense that Congress would have intended eligible employees to obtain a bucket of 12 weeks of FMLA classic and a separate bucket of 12 weeks of EFML. The practical solution here points to treating EFML as we did in 2020 — that is, if leave is taken for a reason covered by EFML, it also counts against FMLA classic.  Having said that, I am not so sure that the Department of Labor is on board with my take here, as the agency seemingly views the December amendments to FFCRA and last week’s enactment of the new FFCRA as a tax credit statute.

We are in desperate need of DOL guidance on my Section Three above, and in particular: 1) Do we get a new bucket of EFML as of April 1? and 2) Does EFML exhaust FMLA classic?

So, let’s all say it together [channeling our inner Princess Leia], as if it’s going to help: “Help me, DOL, you’re my only hope!”

But really, DOL. We’re calling for you. Please help us get this right.

Within the past few days, employers now have greater clarity on whether they will be required to provide their employees emergency paid sick and paid FMLA leave.

The latest news boils down to this:

Employers with 500 or more employees: Breathe easy – it seems apparent you will have no federal mandate to provide paid leave.

Employers with fewer than 500 employees: Think status quo.

What’s the Update?

This past weekend, the U.S. House of Representatives again plugged away at emergency paid sick leave for American workers by passing a slimmed-down portion of the American Rescue Plan.

In the end, the House modified and extended the payroll tax credits for employer-provided paid sick and paid FMLA leave. But don’t mistake my use of the term “modified” here to suggest significant changes are on the way. On the contrary, Congress is poised to simply extend FFCRA leave provisions on a voluntary basis, just as we have now.

The version passed by the House includes the following:

  • FFCRA leave continues to apply only to employers with fewer than 500 employees.
  • Continues FFRCA solely as a tax credit program. Employers are not required to provide paid sick and FMLA leave, but if they do within the parameters of FFCRA, they would be entitled to tax credits.
  • Extends employer payroll tax credits for paid sick and paid FMLA leave through September 30, 2021.
  • Provides a new 10-day bucket of emergency paid sick leave starting April Fools’ Day 2021.
  • Expands the paid sick and paid FMLA tax credits to allow for leave taken to obtain a COVID-19 vaccine or recover from any injury, disability, illness, or condition related to the COVID-19 vaccine.
  • Expands the definition of qualifying paid family leave to allow family leave payroll tax credits to be claimed for all qualifying uses of paid sick time, including for leave provided if the employee is subject to a quarantine or isolation order due to COVID-19 or is caring for someone in a similar situation.
  • Increases the limit on the tax credit for paid family leave wages, allowing the credit on up to $12,000 in paid family leave wages. (Currently, the tax credit for paid FMLA is limited to $200 per day, and $10,000 total per employee.)
  • Adds a nondiscrimination rule to the paid leave payroll tax credits, establishing that employers could not claim the tax credits if paid leave provided to employees discriminates in favor of highly compensated employees or full-time employees, or discriminates on the basis of employment tenure with the employer.
  • Currently, government employers, including state and local government employers, are not allowed to claim paid leave payroll tax credits. The House’s version would provide that certain state and local governments, as well as 501(c)(1) federal government entities, are tax-credit eligible.

Early this week, the Congressional Research Service (CRS) released an 18-page report outlining the provisions of the House version, including the FFCRA leave provisions.  As always, my colleague, Sebastian Chilco, kept me up to speed on what was contained within the House bill.  (Thanks, Sebastian, and everyone within our Littler Workplace Policy Institute!)

The Senate is taking up the American Rescue Plan this week, so we will know within the upcoming week what the final FFCRA package looks like.

Stay tuned . . .