This one is no laughing matter.  Actually, it’s downright sad.

A few years ago, I reported on an employee at an Illinois school who was able to raise an FMLA claim when her supervisor ignored her many pleas for help as she struggled with mental health issues.

Fast forward a few years: a jury recently awarded this employee back pay and other damages as well as attorney’s fees. When all is said and done, the employer’s failure to act within the law will cost half-a-million dollars of taxpayer money.

Here is the story and my suggestions to avoid this kind of madness in your workplace.

Let Me Remind You of the Facts

Noemi Valdivia worked as a longtime executive assistant for Township High School District 214, a suburban high school district northwest of Chicago.  During six years of work, Noemi received excellent performance evaluations. Her supervisors described her as “extremely dependable” and an “invaluable resource,” and commented that her work was “immaculate” and “free from error.” The District later promoted Noemi to a similar position at a different high school within the District, reporting to Principal Angela Sisi.

Shortly thereafter, Noemi’s mental state began to deteriorate—she experienced insomnia, weight loss, uncontrollable crying, an inability to concentrate and exhaustion. On several occasions, she arrived late to work because she lacked energy, and left early because she could not control her crying. Noemi met with Sisi to discuss her emotional state, at which time she indicated that she felt overwhelmed and was having difficulty accepting new assignments because of her current state.  She described in detail what was happening to her, telling Sisi:

I’m so confused. I’m not eating. I’m not sleeping. I’ve been losing weight. I’m so overwhelmed. I don’t understand what’s happening to me.

Noemi had multiple conversations with Sisi describing in detail what she was experiencing. In one of these meetings, Noemi asked Sisi for a 10-month position as opposed to her current 12-month position, thinking that some time away from work might help. She also made clear that she was contemplating quitting her job for medical reasons and taking an offer of employment elsewhere.

Noemi testified that, in response to her pleas, Sisi told her that she needed to decide whether she was “staying or leaving.” For reasons not entirely clear, Sisi denied Noemi’s request to change positions, and she offered no help to Noemi, ultimately prompting Noemi to resign and accept employment elsewhere. Noemi later sought to rescind her resignation and pled for her job back, but Sisi denied the request.

Ugh.

At trial, the jury awarded Noemi $12,000 in back pay and a similar amount in liquidated damages. The real blow to the school district, however, is its obligation to pay Noemi’s attorney fees totaling nearly $200,000. All in, this mess will cost the district more than $500,000 after it pays its own attorney’s fees and costs of an appeal. Valdivia v. Sch. Dist. 214 (pdf)

What an expensive lesson, huh?

Insights for Employers

At the end of every year, my friend and fellow employment blogger, Jon Hyman, solicits feedback on the “worst employer of the year,” and after a reader vote, he announces the winner.  For 2020, I might encourage Jon to add this employer to the list.

Think about everything that went wrong here. If you were the boss:

  • Wouldn’t you have offered Noemi a leave of absence or an accommodation when she described her deteriorating mental health and told you she was so overwhelmed by work that she felt that she could not even accept any new assignments?
  • If not, wouldn’t you have asked Noemi how you could help when she told you “I’m so confused. I’m not eating. I’m not sleeping. I’ve been losing weight. I’m so overwhelmed. I don’t understand what’s happening to me”?
  • If not, wouldn’t you have tried to identify a 10-month position (which is awfully common at a public school) when it was clear Noemi was struggling with a full-time position?
  • If not, wouldn’t you have asked “How can we modify your job duties in some manner to help you succeed?” instead of telling her that she needed to decide whether she was “staying or leaving”?
  • If not, then wouldn’t you have tried to help in some way when Noemi cried uncontrollably on multiple occasions at work?

A “yes” to any one of these questions likely would have avoided a costly lawsuit.  Instead of providing (and documenting!) an accommodation — even a leave of absence — to help Noemi perform her job, the school district accepted her resignation instead.

What are the lessons here?

  1. Train . . . train . . . and train some more. When you read a fact pattern like this one, you’re left with the conclusion that the employer has not trained its managers about their obligations under the FMLA and ADA. In ADA Training 101, you train a supervisor in this situation to engage the employee in a discussion about how we can help the employee perform her job. The school district would have been wise to spend a modest amount of money on FMLA and ADA training; instead, it found itself dealing out $500,000 in (presumably) taxpayer money to pay a judgment and attorney’s fees in an FMLA case.
  2. At that training, be sure your managers understand the the importance of empathy when an employee is dealing with a mental health condition.  The far, far majority of our employees utilize FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee’s request for medical leave or workplace accommodation. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let’s not assume without any basis in fact that our employee is trying to misuse their leave of absence. This is particularly true with an employee like Noemi, who had an excellent six-year track record leading up to the situation outlined above.
  3. Where is HR? I suppose we again chalk this up to more FMLA/ADA training, but in scouring the court’s decision, I don’t find any hint of Human Resources’ involvement. When a supervisor faces a difficult situation like this one, it is critical that management partner with HR to ensure everyone is on the same page in terms of a response. Presumably, though not sure it worked here, HR would counsel a far more appropriate response to the employee. Managers, engage with your HR colleagues when you’re faced with this kind of situation.
  4. FMLA Notice Doesn’t Always Come in Words. There are an increasing number of cases in which courts have found that changes in employees’ behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. This case is a reminder that an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.
  5. Let Empathy be your guide. Where there are clear abnormalities in the employee’s behavior (particularly when the employee cries uncontrollably at work or resigns for medical reasons), it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show that you’re on the same side as the employee. If leave is the only option, it’s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy. Instead of forcing the employee to choose between employment and resignation, an employer is best served by simply asking, “How can I help you?” These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.

In the middle of a global pandemic, employers still grapple every day with the age-old question: When an employee exhausts FMLA leave and cannot return to work, does the law require the employer to provide the employee additional leave? Question 1A surely is close behind: can the employee safely be terminated at that point?  Without debate, these are among the most difficult HR issues an HR professional or in-house employment counsel faces.

The Facts

Take this scenario: Jim is a bus operator for the public transportation system in Columbus, Georgia, and he suffers from back pain due to spinal stenosis (a condition in which spaces within the spine narrow).  Because of the intense pain, Jim takes 12 continuous weeks of leave. After 12 weeks, Jim is not ready to return. And he provides documentation from his physician indicating that he will undergo surgery, resulting in 9 more weeks off work. Jim’s physician confirms he will be able to return to his bus operator position after the end of 9 weeks.

The City of Columbus, however, needs a bus driver right now. It can’t wait 9 weeks for Jim’s return. The City argues that Jim’s absence would cause increased overtime expenses, overburdened operators, and increased recruiting and training costs, thereby imposing an undue hardship on Columbus.

Days later, the City terminates Jim’s employment because it believed his extended absence would create a hardship on its operations.

Is this a problem?

In defense of Jim’s ADA lawsuit, the City argued that it would have been required to incur significant overtime costs, and the forced overtime likely would cause other employees to resign. Replacing the position and training someone up in the meantime also would take quite some time, heavily impacting such a small operation.

The Court agreed, finding that:

  • Jim’s absence would cause “significant difficulty or expense,” given the size of the relevant workforce and the number of bus routes,
  • the negative impact of his absence on the city’s other bus operators,
  • the difficulty of scheduling operators to cover its bus routes while holding open Davis’s position,
  • the cost of overtime pay, and
  • the expected loss of trained and experienced personnel as a result of forced overtime.

Insights for Employers

What’s the lesson here for employers?

My friend and ADA expert, David Fram, noted several lessons in a LinkedIn post earlier this week, and I think they’re worth using as a guide when approaching these situations:

I agree with David in all respects and, in particular, on a few points:

  1. Employers can (and should) assess “undue hardship” earlier in the process.  As we know, the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless the accommodation causes an undue hardship on the employer. When it comes to leave, employers generally conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an accommodation. However, an employer can and should take the 12 weeks of FMLA leave already provided to the employee when considering whether additional leave would create a hardship. Employers have the flexibility as early as “day one” of an employee’s FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee’s job for up to 12 weeks, the employer now has an argument that an undue hardship — if properly supported, of course — occurs after FMLA is exhausted.
  2. Raising the Issue of Cost is Risky.  As David notes, it is a dangerous proposition to raise cost as a factor in an undue hardship analysis, or at least in the same high-profile manner that the City of Columbus did in this instance.
  3. But Effects on Co-Workers can be a winner.  This is so important. If employees are taking on the extended hours, projects and duties left behind by the absent employee, this is quickly going to be a problem. And it’s a concept that is easily articulated to a court. Use this “burden on others” to your advantage when making an undue hardship argument.

When an employee is seeking an accommodation — especially here where they are seeking additional leave beyond FMLA leave — the age-old principles still apply:

  • Engage your employee in the interactive process.  It’s not entirely clear from the facts whether this was done to any great extent here, but start the conversation off right by engaging the employee about his return to work.  You’ll want to discuss: What limitations does the employee have? What functions can he/can’t he perform? Are there any modifications we can make to his job to help him get back to work? Have we discussed restructuring his position or temporarily relocating the employee to an open position for which he is qualified?  Can we provide any other accommodation other than leave to help him stay on the job?  The EEOC’s decision to initiate litigation against an employer in these situations often hinges on whether the employer is to blame for the breakdown in this interactive process, so it is critical to master this step.
  • Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations?  If it’s not impacting your operations, this will be a key factor in granting additional leave.  However, if it is impacting operations, you want to memorialize this earlier in the process. In Jim’s case, his absence would continue to impact operations — for example, overtime increased, employees were forced to work longer hours to cover for him, recruiting and training would require significant amounts of time.  Once you have conducted this analysis, tell the employee about it.  Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment so that you can better assess whether leave can be provided as a reasonable accommodation.
  • As I have noted in previous blog posts, consider these factors below when analyzing whether the requested leave of absence poses an undue burden on your operations:
    • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
    • Lower quality and less accountability for quality
    • Lost sales
    • Less responsive customer service and increased customer dissatisfaction
    • Deferred projects
    • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
    • Increased stress on overburdened co-workers
    • Lower morale

There is no one-size-fits-all approach to these real life situations.  However, by regularly communicating with employees and documenting how they have engaged in the interactive process, employers clearly have a leg up in minimizing ADA and FMLA liability.

This week, President Trump and former Vice President Joe Biden will meet for the first of several presidential debates leading up to the November 3 general election.  Several of my blogging colleagues and I have identified THE debate question we would ask each of the candidates if we had had the chance.

Channeling my inner Chris Wallace, these are the leave-related questions I would pose:

To Vice President Biden

With the exception of the Families First Coronavirus Response Act (FFCRA), there is no federal law requiring private-sector employers to provide paid family and/or medical leave to their employees. Numerous states and localities, however, have adopted leave laws requiring specified employers to provide paid leave to employees for a range of reasons, under a variety of circumstances, and subject to differing eligibility criteria.  A ton more states and cities have introduced similar laws.  As a result, employers are mired in a morass of varying statutory and regulatory obligations, crippling their ability to effectively run their businesses.  Will you commit to supporting a federal paid leave law that balances the rights and needs of both employers and employees, and will you commit that this federal law will preempt all state and local paid leave laws so there is one law and one standard that employers must follow?

Jeff’s editorial comment: Earlier this month, Littler‘s Workplace Policy Institute (WPI), led by my colleagues Mike Lotito and Jim Paretti, provided comments to the Department of Labor Women’s Bureau’s request for information on the impact of paid leave on employers.  In WPI’s submission, we pointed out the following:

It is our experience – informed by that of our clients – that it is this multi-state/locality “patchwork” of requirements that are imposing the most significant burden relating to paid leave on larger employers operating in multiple jurisdictions.  Our larger, multi-jurisdictional clients report having to devote significant administrative personnel and resources, at significant cost, to ensuring compliance with various state and local law leave mandates.  This, of necessity, means fewer resources which can actually be devoted to accomplishing the over-arching goal of providing paid leave to employees.  And even in those states where an employer may seek permission to use its own privately-run program (rather than provide leave by way of a state-run mechanism), the variance from state to state in requirements for such approval often prevents a multi-state employer from operating a standardized, national leave benefit program for all of its employees.

The importance of the ability of an employer to maintain and administer a single national benefits scheme – to the benefit of both employers and employees – cannot be understated.  Foremost, this ability allows an employer to provide and administer paid leave benefits to its employees at a predictable and manageable level of cost and resources.  This predictability is increasingly challenged as more states and localities contemplate additional benefit mandates, threatening the ability of employers to maintain existing benefit plans within the confines of their limited resources.  At the same time, a uniform scheme of paid leave benefits ensures that employees are granted certainty as to what they are entitled to under their employer’s plan, irrespective of their state of residence, the location of their specific worksite, the ability to work remotely, or their mobility across various enterprise sites of the employer.

To President Trump

Four years ago, you became the first Republican presidential nominee to propose paid maternity leave for employees across the country. Under your proposal, you would have provided six weeks of paid maternity leave to new moms paid for by funds recovered in fighting unemployment compensation fraud.  Why were you unable to generate support of your party in passing such basic parental leave legislation, and what steps will you take to do so in a way that assists American workers but does no harm to American employers?

______________________________________________________________

For the questions that my employment law/HR blogging friends would ask these candidates, check out their blogs:

Jon HymanOhio Employer’s Law Blog

Dan Schwartz — Connecticut Employment Law Blog

Suzanne Lucas — Evil HR Lady

Kate Bischoff — tHRive Law & Consulting Blog

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) following a federal court’s decision that invalidated a handful of regulatory provisions interpreting the FFCRA.  Although the DOL was widely expected to address the court decision through revised regulations and/or court action, these new regulations throw additional curveballs for employers already struggling to comply with extensive COVID-19-related legislation.

Over the weekend, five Littler colleagues and I (including Bill Allen, Alexis Knapp, Lauren Marcus, Emilie Hammerstein, Mike Lotito) discussed, debated, even delighted in these new regulations.  [No, we didn’t delight. The DOL dropped these new regs at 6:15pm ET Friday night. Yeah, I might love the FMLA, but not on a Friday night at 6:15pm. No thank you, DOL.]

Yesterday, we published a comprehensive alert for employers on these DOL’s new regulations. If clicking through is too much work, here are the details of our post below.

Decision Invalidating Parts of Rule and DOL’s Response

As background, on August 3, 2020, a federal court in New York struck down four parts of the FFCRA’s final rule: (1) the requirement that leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) are available only if an employer has work available for the employee from which leave can be taken (“the work availability requirement”); (2) the requirement that an employee must have employer consent to take FFCRA leave intermittently; (3) the definition of an employee who is a “health care provider,” who an employer may exclude from use of FFCRA leave; and (4) the requirement that employees must provide their employers with certain notice and documentation before taking FFCRA leave (rather than after the leave begins).

In response, the DOL has issued revised regulations in which it clarified and doubled down on some of its original positions, while making some regulatory changes in line with the court’s ruling.  Dare I say, the DOL even got a little saucy with the New York court at times in defending its positions on various rules.  [Love that spunk, DOL!]

In its revised regulations, set to be published and take effect on September 16, 2020, the DOL:

  • Reaffirms that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave, and provides its reasoning why this precondition is critical;
  • Confirms that intermittent leave under FFCRA can only be taken with employer approval;
  • Provides an amended definition of “health care provider” that is narrower than its original regulations to cover employees who are health care providers under the classic Family and Medical Leave Act (FMLA) definition, as well as other employees who are employed to provide diagnostic, preventive, or treatment services, or other services that are integrated with and necessary to the provision of patient care; and
  • Clarifies the timeline for when an employee must provide notice of the need for leave and supporting documentation.

The DOL Stands Firm on the Work Availability Requirement

Under the DOL’s original rule, one of the requirements for taking FFCRA leave (under both the EPSLA and EFMLEA) is that the employer must actually have work available for the employee to perform when the need for FFCRA leave occurs.  If the employee is not scheduled to work—whether due to a furlough, business closure or otherwise—there is no work from which to take leave.

In vacating this rule, the court found that the DOL’s “barebones explanation” for the work availability requirement was deficient in that it did not provide sufficient analysis as to the reason why work must be available for leave to be available. The court’s decision to strike down the work availability requirement stood in contrast to long-standing FMLA regulations, which make clear that periods of time when an employee would not otherwise be expected to work do not count against an employee’s FMLA leave entitlement.

In its new final rule, the DOL held firm that an employer must have work available for an employee in order for the employee to be eligible for FFCRA leave.  In other words, the employee’s FFCRA reason for leave must be the sole (“but-for”) reason they are not working.  In doing so, the DOL made clear:

. . . 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. Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.

In its analysis, the DOL observed, “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.”  The DOL also revisited one of the FFCRA’s core purposes of discouraging employees who might be likely to spread the virus from reporting to work, and pointed out that work must be available for that purpose to be effectuated.

Notably, the Agency cautioned that removing the work availability requirement would lead to “perverse” results.  Take, for instance, an employer that closes its doors or limits business hours and furloughs employees, none of whom would receive pay for being off work. Under the court’s reading, a furloughed employee with a qualifying reason for FFCRA leave could take EPSLA or EFMLEA leave, even when the business is otherwise closed or lacks available work. As the DOL noted, this employee would be paid during this period of leave, while their co-workers who do not have a qualifying reason for FFCRA leave would not be paid. As such, the DOL stood firm in its position on the work availability requirement, and reinforced that employees on furlough or temporary layoff status are more appropriately directed to contact their unemployment agency, rather than seek paid leave from their employer.

The DOL underscored, however, that employers may not arbitrarily withhold work in order to thwart an employee’s ability to take leave and emphasized that the unavailability of work must be due to legitimate, nondiscriminatory, non-retaliatory business reasons.

Definition of “Health Care Provider”

The FFCRA permits employers to exclude “health care providers” from some or all forms of EPSLA or EFMLEA leave.  In its original rule, the DOL provided an expansive definition of “health care provider” for FFCRA purposes that focused on the types of employers that could exercise the exemption.  In striking down the DOL’s broad, original definition, the court noted that any definition of “health care provider” must require “at least a minimally role-specific determination” of who is capable of providing healthcare services, depending upon the “skills, roles, duties, or capabilities” of the employees, and may not “hinge[] entirely on the identity of the employer.”  In other words, the court held that a health care employer would need to undertake a position-specific analysis of whether someone met the definition of health care provider before deciding whether leave was permitted, and that the definition of “health care provider” should also be much narrower (which would, in theory, permit more employees to take FFCRA).  When it invalidated the DOL’s original definition, the court referred only to the very narrow definition of “health care provider” under classic FMLA, leaving a regulatory gap for the DOL to again try to fill.

In response, the DOL crafted a definition that focuses on employees whose duties or capabilities are directly related to the provision of health care services or are so integrated to provision of such services so as to adversely impact patient care if not provided.  Accordingly, the new regulations remain far broader in scope than the classic FMLA definition of health care provider, while eliminating those employees whose services are not related or integral to provision of health care services.

More specifically, for purposes of that exemption, the DOL revised the regulatory definition of “health care provider” to include only employees who: (1) meet the definition of that term under the existing FMLA regulations; or (2) 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.”

Existing FMLA Regulations

The existing FMLA regulations define “health care provider” to include doctors of medicine and osteopathy and “others capable of providing health care services.”  The definition also includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and certain Christian Science practitioners.  Somewhat circularly, the existing FMLA regulations also recognize health care providers from whom an employer or employer’s group health plan’s benefits manager will accept certification of a serious health condition for purposes of substantiating a claim for benefits.

Newly Revised FFCRA Regulations

To fill the gap left by the court, the DOL asserts that the scope of health care services for purposes of the FFCRA must take into account the context of a pandemic and encompass a broader range of services than in the limited, classic FMLA context of diagnosing serious health conditions and filling out medical certifications.  The DOL underscored that a broader definition of “health care provider” for purposes of the exemption is justified because “those employees’ services are important to combating the COVID-19 public health emergency and are essential to the continuity of operations of our health care system in general” and thus, their absences from work would be “particularly disruptive.” Consequently, the DOL drew upon the definition of “health care service” in the Pandemic Hazards Preparedness and Advancing Innovation Act of 2019 to identify relevant health care services.  The revised FFCRA regulations clarify the various types of services that constitute health care services as follows:

Diagnostic: Includes 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: Includes screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.

Treatment: Includes performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.

Integrated: Those services that are “integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

Consistent with the focus on employees rather than employers, the revised FFCRA regulations specifically identify the following types of employees who may continue to be excluded from taking FFCRA paid leave:

  1. nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive, treatment or other integrated services;
  1. employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
  1. 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 revised regulations then specifically exclude those who do not actually provide such health care services, 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 works, records managers, consultants, and billers.”

The DOL provided an “illustrative list” of “typical work locations” where employees providing health care services may work, including the following:  “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.”  The specifically identified locations match the list in the original FFCRA regulations, while the “catch-all” is similar to the original regulations but eliminates “similar institution, Employer, or entity” as a modifier to the locations.  Of course, an employee need not work at one of these enumerated facilities to be a health care provider for FFCRA purposes, and working at one of these facilities does not necessarily mean an employee is a health care provider.

Intermittent Leave Still Requires Employer Consent—But “Intermittent” May be Defined Differently than Employers Previously Thought

In striking down the DOL’s rule on intermittent FFCRA leave, the court questioned the DOL’s blanket requirement that an employee have employer consent to take intermittent FFCRA leave, finding that the DOL had not explained its rationale for such consent.  Sticking to its original position, the DOL stood firm in these new regulations on its position that intermittent FFCRA leave is available only when the employer consents, but offered an extensive rationale for its position.

In contrast to the FMLA, the FFCRA itself does not address intermittent leave, giving the DOL broad regulatory authority to fill this statutory gap.  In revisiting its original regulations, the DOL noted that the classic FMLA regulations generally provide for intermittent leave only for certain qualifying reasons (e.g., where intermittent leave is medically necessary), or where the employee and employer agree to an intermittent leave arrangement (such as for bonding leave following the birth or placement of a child).  The DOL further harkened back to the classic FMLA regulations, which require that, when the need for leave is foreseeable, it must be scheduled in a way that is minimally disruptive to business operations—leading the DOL to reinforce the requirement of employer consent for FFCRA leave.

In the case of leave to care for a child whose school or place of care is closed, medical necessity is not an applicable framework.  Thus, the DOL noted that FFCRA leave obligations should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.” Leave in this instance, according to the DOL, is akin to an employee taking intermittent leave to bond with a child after childbirth or placement into adoption or foster care. Consequently, intermittent FFCRA leave can only be taken with the consent of the employer.

Notably, however, the DOL’s use of the term “intermittent” seems to have taken on some new substance.  More specifically, the preamble to the DOL’s new regulations address administration of FFCRA leave when an employee’s child participates in hybrid learning in which schools operate on adjusted or alternating schedules.  Here, each day of school closure “constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”  As a result, intermittent leave is not necessary on these occasions because the “school literally closes . . . and opens repeatedly.”

Easing Documentation and Notice Requirements in Certain Instances

In its decision, the NY court invalidated the final rule to the extent it required the employee to provide documentation prior to taking FFCRA leave, as it rendered some of the statutory provisions unworkable.

Taking note of the court’s admonition, the DOL tweaked the existing regulations to clarify that any documentation required under Section 826.100 need not be provided before leave begins, but rather may be given “as soon as practicable, which in most cases will be when the employee provides notice” of the need for FFCRA leave.

Further, in situations where an employee seeks EFMLEA leave to care for a child whose school or place of care is closed, the DOL confirmed that the employee must provide the employer with notice of leave as soon as practicable under the circumstances.  If EFMLEA leave is foreseeable, such as in instances where the employee learns in advance that school will be closed, the DOL anticipates that the employee generally will provide notice before taking leave.

New FAQs

In conjunction with issuing revised regulations, the DOL updated and added to its FAQs to reflect the new guidance in the following ways (as of the publication of this article):

  • The updated FAQs note an employee must provide their employer with the required documentation and information “as soon as practicable.”
  • The FAQs regarding intermittent leave under both EPSLA and EFMLEA are updated to provide that an employee whose child’s school or place of care is closed, may still only take leave under the FFCRA intermittently if the employee and the employer agree.  The example given is that if you have another family member watch your child on Tuesday and Thursday, but cannot work on Monday, Wednesday and Friday, you would need employer approval to use the leave intermittently.  However, in line with the amendment discussed above, the FAQ notes that if an employee’s child’s school or place of care is closed on alternating days, leave may be used intermittently even without employer permission, because it is really being used in single, full-day increments and is not, in fact, “intermittent.”
  • The DOL also amended the FAQ providing “who is a ‘health care provider’” to track the updated definition.
  • The DOL added FAQs # 101-103 specifically addressing the effect of the NY court decision and the new regulations.

Insights for Employers

There certainly is some good news for employers here, as the DOL provides a common-sense application of the work availability rule that enjoys a much stronger chance of surviving legal challenge in the future.  The new rule also carefully balances an employer’s operational needs when an employee requests intermittent leave.  Employers also should be mindful of the DOL’s changes on the timing of notice of the need for FFCRA leave and the timing of documentation requirements.

In the meantime, the DOL’s regulatory changes have immediate impact on health care employers, particularly those that have exempted some or all of their employees from FFCRA leave as a result of the DOL’s initial sweeping rule regarding health care providers.  We encourage these employers to seek counsel on the scope of employees now exempt from FFCRA leave.  In addition, to the extent employers have questions about whether they should take any actions to mitigate risk from having followed the prior regulations on any of these issues, they should also consult with their favorite employment counsel to discuss strategy and approach.

Those crazy little rascals at the Department of Labor must be readers of this second-rate FMLA blog!

Last week, I published FAQs offering insight on how employers should administer leave under the Families First Coronavirus Response Act (FFCRA) when an employee requests leave because a child’s school is closed or child care unavailable. As you may recall from that post, I noted that the DOL left open some questions on issues like whether FFCRA leave is available for hybrid learning or on occasions when a parent voluntarily keeps a child home from school.

It’s as if the DOL heard our musings, as these open-ended questions are open no longer. [No they didn’t hear your musings, Jeff, they don’t read your blog!]

Late yesterday, the DOL announced the release of three new FAQs (FAQ #98-100) concerning an employee’s eligibility for FFCRA leave when a child’s school is operating on a remote or hybrid schedule. The FAQs generally explain that employees are eligible for FFCRA leave while a child’s school is closed; if the school is open for in-person learning but a parent has selected a remote option, leave may not be available, depending on the circumstances.

Hybrid Learning (FAQ #98)

In FAQ #98, the DOL addressed situations where the school provides hybrid learning, where students split their time between in-person learning and remote learning.  In these situations, the DOL confirmed that an eligible employee may take FFCRA leave on days when the employee’s child is not permitted to attend school in person and must instead engage in remote learning.

The Parent’s Choice (FAQ #99)

What if the school gives the parent a choice as to the location of the learning – in school or at home?  Put another way, what if the parent voluntarily chooses remote learning as opposed to his or her child physically returning to school, perhaps because the parents fear their child will be infected at school?  Is this employee eligible for FFCRA leave?

No, says the DOL. The employee cannot take FFCRA leave in this instance because the child’s school is not “closed” due to COVID–19 related reasons; it is open for the child to attend.

The School May Reopen Later (FAQ #100)

Finally, in situations where the school is opening the school year remotely, but may open at a later time, the DOL again confirmed that FFCRA leave is available on school days when the child is engaged in remote learning. However, if the school later transitions to exclusively in-person instruction, FFCRA leave will not be available. Similarly, as noted above, if the school moves to a hybrid learning environment, employees can use leave only on remote instruction days.

Now you know . . .

 

As we head into the second half of August, many of our kids are heading back to school.

Or maybe they’re not.

Full day in-person classes? Or perhaps hybrid? Semi-hybrid? Remote? Home school? Dropping out?

The possibilities are endless.

With some version of school starting up in a neighborhood near you, employers will face challenges as potentially significant numbers of employees will be called away from work to attend to parental duties, since many of their children are shuffled into more remote learning this fall due to the COVID-19 pandemic.

And my phone is ringing regularly with questions about how employers should properly administer leave under the Families First Coronavirus Response Act (FFCRA) when an employee requests leave because a child’s school is closed or child care unavailable. Given the groundswell of questions, I thought I would hit these questions head on here.

Quick Reminder: While many employers are not covered by laws that provide leave to employees who need to care for their children when their school or child care is closed, the FFCRA requires employers with fewer than 500 employees and most public employers to provide up to 12 weeks of leave to eligible employees in the event of school or child care closures.   Still, even larger employers may be subject to state and local laws that protect employees in these instances. In other words, you may want to read along.

“Closed” school

Q.  Eligible employees can take FFCRA leave if they are unable to work or telework due to a need to care for their child whose school or place of care is closed due to COVID-19 related reasons. How do we know if a school is “closed”?

A.  If the physical location of a school where a child receives instruction closes and moves online – where children are expected to attend school remotely and complete assignments at home – then it is considered “closed” for purposes of the FFCRA (see FAQ #70), and employers are required to provide leave to eligible employees. Employees still must provide an explanation for the reason for leave and provide documentation to support their leave request, but I will cover that later.

Q.  Ok, that’s easy enough. But many schools are moving to a “hybrid” model where students are split into groups – for instance, one group attends school in-person on Mondays and Thursdays, and the other group attends in-person on Tuesdays and Fridays.  When they are not in school, students attend school remotely. Can an employee take FFCRA when the child is attending school in-person and remotely?

As the DOL has made clear, if a school or child care is open to some students, but not to the employee’s child (due to a hybrid model or other COVID-related reasons), the school or childcare provider still is considered “closed” to the student who is unable to attend in-person. As a result, the employee may be eligible to use FFCRA leave when needed to care for children at home due to a “hybrid” model under which students physically go to school a few days each week and attend remote learning on the other school days. As to those days when the employee’s child is attending school in-person, FFCRA would not be available.

Q.  Sure, I hear you. But what if the school offers both an in-person option and a remote learning option, and the parent chooses the remote option?  Can they take FFCRA leave for any or all of this time period?

A.  This is getting a bit tougher. The DOL has not definitely addressed whether an employee can take FFCRA leave in situations where the employee has voluntarily chosen remote learning as opposed to his or her child physically returning to school, but based on the language in the FFCRA, it seems that this employee would not be eligible for FFCRA leave because they had the option to return their child to school in person. In this scenario, the school is not considered “closed” due to a COVID-19–related reason.

Use of Intermittent Leave and Scheduling Arrangements

Q.  May an Employee Take FFCRA Leave Intermittently to Care for a Child Whose School or Child care is closed?

A.  As a result of the hybrid scheduling above or due to the specific needs of a family, employees may very well seek leave intermittently to attend to their child. The FFCRA regulations and the DOL’s FAQ #22 make clear that leave can be provided on an intermittent basis only with the employer’s approval.

But hold on a second. If you regularly read my FMLA drivel, you’ll recall that a recent federal court decision invalidated the DOL’s regulation requiring that the employee first obtain the employer’s permission to take intermittent leave.  As a result, employers must carefully review requests for intermittent leave and consult your employment counsel before denying an employee’s request for intermittent leave related to an employee’s care-giving responsibilities. In light of the above decision, employers deny intermittent leave in these instances at their own peril.

Q.  One of our employees has been working remotely just fine over the summer but now wants to take leave because his kid’s school is operating remotely this fall. Can they take leave now even though they didn’t need leave last spring?

A.  The fact that the employee did or did not take FFCRA leave this past spring does not mean that the employee cannot now take leave as schools resume remote learning. As the DOL explains in FAQ # 91, there may be many different legitimate reasons an employee did not take leave previously, but now seeks to do so.

Here, the DOL makes clear:

While you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.

In other words, give the employee FFCRA leave in these situations.

Q.  Can more than one guardian take paid sick leave or expanded family and medical leave simultaneously to care for my child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?

A.  Naturally, clients have been asking me whether they need to provide leave to an employee because of their kid’s closed school when there is ample evidence that the other parent or another caretaker is available.  In FAQ #69, DOL again reminds us that leave is not appropriate in these circumstances:

You may take paid sick leave or expanded family and medical leave to care for your child only when you need to, and actually are, caring for your child if you are unable to work or telework as a result of providing care. Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs. See Question 20 for more details. (My emphasis)

Where the employee requests leave to care for a child whose school or place of care is closed, DOL adopts recently-issued IRS guidance by limiting EPSL and FMLA+ only to those situations where the employee must actually care for the child and no other suitable person (e.g., co-parents, co-guardians, or the usual childcare provider) is available to care for the child during the period. If another caretaker is available to care for the child, the employee is not entitled to leave.

Documentation

Q.  What documentation must an employee provide to support the need for FFCRA leave to care for their child in these situations?

A.  If an employee has requested FFCRA leave to care for a child whose school is closed or childcare is unavailable, the employee must provide the employer (either orally or in writing) the following information:

  • Name;
  • The date(s) for which he/she requests leave;
  • The reason for leave; and
  • A statement that the employee is unable to work because of the above reason.

Because the school or place of care is closed or child care provider is unavailable, the employee must also provide:

  • The name of the child;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement that no other suitable person is available to care for the child. If the child is older than 14, the employee also must provide a description of the special circumstances that require the employee to provide care to the child

State and Local Laws

Q.  Do We Need to Worry about any State or Local Laws Impacting an Employee’s right to take caregiver leave?

A.  In a word, yes.  Although larger employers (with 500 or more employees) are not governed by FFCRA, several states and a few municipalities have enacted or amended paid sick leave laws to account for time off due to COVID-19 related reasons.  These laws and ordinances typically do not cap out at a maximum number of employees. For example, Colorado, New Jersey, Oregon, the District of Columbia and several cities in California (Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo, and Santa Rosa) have extended FFCRA-like benefits to larger employers not covered by the federal law. Because these laws generally provide leave in addition to any FFCRA entitlement, it’s critical that you determine how these laws impact your employees.

Be mindful of your state and local obligations.

Creative Solutions

Q.  Are there any creative ideas to help parents meet their work and family obligations while remote learning remains the norm for the foreseeable future?

A.  Glad you asked.  As I’ve stated before, this pandemic is shining a light on the need for employers to recognize and creatively address the very delicate balance parents have both to their job and their families. In its FAQs and guidance, the DOL has encouraged employers and employees to collaborate to find solutions that meet their mutual needs. Unlike ever before, I find that employers are increasingly becoming more flexible with time off to attend to COVID-related issues, especially for employees who have exhausted all available leave.

Here are some other options:

  • Adjusting schedules so that employees with care-giving needs could be shifted to account for an earlier or later start/finish time so that they can balance work-family obligations
  • Temporary unpaid leave and/or temporary job reassignment
  • Increased opportunities to telework
  • Allowing intermittent leave to address child care issues
  • Some employers have secured nanny or tutor resources that can be accessed through a workplace EAP so that employees can find the support they need

What’s working for you? What creative solutions are you implementing in order to maintain employee morale and helping your employees balance work and family commitments? I welcome your feedback so we can all get through this together.

Earlier this week, a federal court in New York kicked to the curb four key provisions of the U.S. Department of Labor’s regulations implementing the paid leave provisions of the Families First Coronavirus Response Act, requiring employers covered by the Act to quickly decide how it will address these scenarios in the future.

As you will recall, the DOL issued final FFCRA regulations on leave on April 1, 2020 as a sweet little April fool’s present for us. Days later, the State of New York sued the DOL, claiming that the agency  unlawfully denied leave to otherwise eligible employees and by exceeding their statutory authority in drafting the final regulations.

After sifting through the parties’ arguments, the Court invalidated four FFCRA regulations:

  • The DOL’s requirement that FFCRA leave is available only where the employee had work available to be performed;
  • The broad healthcare provider exemption, which allowed a health care employer to decide which of its employees would be eligible for FFCRA leave;
  • The requirement that employees obtain consent from the employer for intermittent leave for certain reasons; and
  • The timing of documentation supporting the need for FFCRA leave.

You can access the Court’s opinion here (pdf).

Court Finds Work-Availability Requirement to be Faulty

One of the key preconditions for taking FFCRA leave (both paid sick leave – EPSL, and paid FMLA leave – FMLA+) is that the employer actually have work available for the employee to perform.  If the employee is not scheduled to work — whether it’s due to a furlough, business closure or otherwise — there is no work schedule from which to take leave.

Having a work schedule is the prerequisite for taking FMLA leave.  Consider, for instance, the FMLA regulations, which make clear that periods of time when an employee would not otherwise be expected to work should not count against an employee’s FMLA leave entitlement:

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.  29 C.F.R. § 825.200(h)

Therefore, it seems eminently reasonable that the DOL requires that an employee actually be working as a precondition in taking FFCRA leave. Common sense, yes?

This federal court apparently didn’t think so.

Using a somewhat unusual “snow day” analogy, the Court noted that an ongoing period of parental leave would continue, despite that there might be a one-day, weather-related closure.  But as my Littler colleagues and fellow FMLA nerds Alexis Knapp and Emilie Hammerstein point out in our analysis on the Court’s decision, surely there is a difference between whether an ongoing, statutory leave of another sort would continue despite a brief, weather-related interruption, and an employer’s obligation to provide new, paid, federal leave benefits to an employee when there is an absence of work available at all.

Nevertheless, the Court determined that DOL could not require that employees actually be working in order to take FFCRA leave.  How ’bout them apples?  The Court’s decision to strike these work availability requirements opens the door for claims of leave by employees who are furloughed or temporarily laid off or whose employers have had to temporarily cease operations under state or local orders, or due to economic circumstances during the pandemic.  [This ruling also likely blows up DOL FAQs 23-28, all of which deal with the employee’s inability to take FFCRA leave when there is a business closure or reduction in hours.]

This. Is. A. Big. Deal. 

Employer Consent Not Required for Certain Intermittent Leave Reasons

Congress did not address intermittent leave at all in the FFCRA. As such, DOL was responsible for filling in the gaps through its regulatory authority.

In its final rule, the DOL significantly limited intermittent leave for both EPSL and FMLA+. In an effort to limit the risk that an employee might spread COVID-19 to other employees, DOL limited the use of intermittent leave for those who are working onsite to two main conditions:

1) that the employee and employer agree to the use of intermittent leave; and

2) such use is limited to the employee’s need to care for a child whose school or place of care is closed, or where child care is unavailable.

In doing so, DOL slammed the door on the use of intermittent leave for any of the other five reasons under EPSL for employees working onsite.  Its reasoning was practical: where an employee is absent due to COVID-19 symptoms or diagnosis or is taking care of an individual in a similar predicament, it is not acceptable for the employee to take intermittent leave due to the “unacceptably high risk” that the employee might spread COVID-19 to other employees.  In these situations, DOL made clear that the employee must continue to take continuous paid sick leave each day until the employee either exhausts paid leave or no longer has a reason for leave from work.

In the case of telework, the DOL issued rules supporting intermittent leave for employees who are taking EPSL or FMLA+, but again, only if the employer and employee can agree.  DOL contemplated that the employee and employer will “agree on an arrangements” for intermittent leave “that balance the needs of each teleworking employee with the needs of the employer’s business.”

In reviewing the DOL’s rationale, the Court first agreed that intermittent leave should be limited to situations where there is no risk that the employee might spread the virus to others.  However, the Court found that the DOL had “utterly fail[ed] to explain why employer consent is required for the remaining qualifying conditions,” which do not implicate the same public-health considerations. In other words, the DOL offered no reasonable explanation for its requirement that an employer’s consent is needed for intermittent leave due to school or childcare closure.

Given the DOL’s lack of rationale for the blanket requirement of employer consent, the Court invalidated this portion of the final rule where the employee needs to care for a child whose school or place of care is closed or where child care is unavailable.

Employers Cannot Require Documentation Before Leave

The final rule obligated employees to submit documentation to their employer prior to taking FFCRA leave that indicates the reason for and duration of the leave, and where relevant, the authority for the isolation or quarantine order qualifying them for leave.  The State of New York took issue with this rule, arguing that documentation is not required before an employee takes FFCRA leave.

Notably, under EPSL, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time after the first workday an employee receives paid sick time under this Act.  Additionally, FMLA+ requires that the employee provide the employer with notice of leave as is practicable under the circumstances.

In light of these specific requirements, the Court determined that a blanket requirement that an employee furnish documentation before taking leave renders statutory provisions unworkable. To the extent that the final rule imposes a more stringent condition for leave, the Court found it inconsistent with the FFCRA’s notice provisions.

While striking down any requirement that documentation be provided as a precondition to leave, the court left intact the final rule’s overall documentation requirement to support the need for leave.

The Court Strikes the Definition of Health Care Provider

In the final rules, the DOL allowed an employer to exclude from FFCRA leave any health care providers and pretty much anyone associated with a health care provider.  The regulation defines health care provider broadly for this purpose as: anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, 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 institution, employer, or entity (my emphasis added).

The DOL didn’t stop there. The regulation’s definition also includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.  This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.

Notably, as the Court pointed out, the DOL rule finds that an “English professor, librarian, or cafeteria manager at a university with a medical school” all are considered “health care providers” under the FFCRA regulations, and their employers could deny these individuals FFCRA leave, even though they would be surprised to learn that they even fell into this esteemed category of individuals.

Despite the DOL’s argument that maintaining a broad definition of “health care provider” is necessary to “maintaining a functioning healthcare system during the pandemic,” the court minced no words in invalidating the rule:

the Final Rule’s definition is vastly overbroad . . . in that it includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality.

Ouch. Back to the drawing board on this one.

Insights for Employers 

Ok, now what?  Couple of thoughts:

  1. Does this decision apply just to New York employers or is it nationwide in scope?  Really good question. The New York Attorney General, Letitia James, seems to think so based on this press release her office issued after the decision was handed down. Here are my quick thoughts: 1) the State of New York asked the judge to issue an injunction to halt these regulations from being enforced; 2) New York suggested no limitation; and 3) the Court’s ruling offered no limitation on the scope of its ruling. Also, for what it’s worth, these kinds of decisions tend to result in a nationwide scope [think FLSA regulations back in late 2016]. Bottom line: an employer who thinks this decision applies just to New York employers does so at great peril.
  2. Will the DOL appeal? No clue, they’ll have a couple weeks to decide. But it seems to me that the DOL really has to advance these issues to the appellate court.
  3. Will the DOL issue new regulations? You’ve got to think so, right? This decision just crashed a semi-trailer through some key FFCRA regulatory provisions that employers have been relying on since April 1, and the DOL would be wise to give some thought to (at a minimum) the manner in which employers should address availability of work and the definition of health care provider.
  4. Do Employers Have to Provide Retroactive Leave dating back to April 1? Another good question. Clearly, employers have a very good argument that we had a right to rely on the DOL’s FFCRA regulatory provisions before the Court’s decision yesterday, and therefore, this ruling would not be applied retroactively. In the unlikely event this ruling applies retroactively, let’s face it: we’re all together in a world of hurt.

These are tough questions, and you need help deciding whether you will change your approach on these leave issues. You know I am not often one to punt on giving practical advice in my blog articles, but you really need to call to your employment attorney to begin strategizing.

Do it this week.

Employers across America are requiring their employees to wear face coverings or masks while at work.

At the same time, employers across America are dealing with employees who have a million excuses why they can’t wear a face covering at work. Many of these excuses aren’t valid.

Some are.

If an employee claims to have a medical condition that prevents them from wearing a face covering, your ADA and FMLA radar should start buzzing. But how do you address this request?

Start with the ADA

An employee’s request not to wear a mask because of a medical condition triggers the interactive process under the ADA. Why? Simply put, the employee is requesting a modification to the manner in which they perform their job so that they can perform the essential functions of their job.

Here, the employee may have a respiratory impairment, anxiety disorder, autoimmune condition, or similar conditions. As several of my Littler colleagues address in this informative discussion, in addressing this situation from an ADA standpoint, the employer should ask the employee:

  • Does the employee actually have a condition that may need to be accommodated under the ADA, and can the individual provide reliable medical documentation to confirm their inability to wear a mask or face covering?
  • What are the essential functions of the employee’s job, and is wearing a face-covering a new, albeit transient, essential job function?
  • Are there alternatives to the mask or face covering requirement, such as use of a shield or methods for isolating the employee from others?
  • Would eliminating the face covering pose an undue risk to the safety and health of the employee or others?

Employers are wise to consider alternatives to meet ADA obligations.  Still, in many of these situations, you still will legitimately find that wearing a mask is an essential job function and the employee cannot be excused from wearing one at the worksite.

Finish with the FMLA

If you find that the only option available is to exclude the employee from working because the job requires that they wear a face covering, what do you call this leave?

I call it F-M-L-A leave.

Let me explain. An employee is entitled to take FMLA leave when: 1) they have a serious health condition that 2) renders them unable to perform one or more essential job functions.

Serious health condition: In most cases, the employee will be able to establish that they have an underlying medical condition, whether it’s a chronic condition or a long-term condition requiring ongoing care.  If they don’t have such a condition, then the inquiry is closed and no leave or accommodation is required. However, in many of these situations, the employee will find a doctor who will certify their medical condition.

Unable to perform job: But does this condition render them unable to perform an essential job function? In the COVID-era, it seems eminently reasonable for the employer to add face coverings as an essential job function for most or all positions.  Taking this position is only strengthened by state and local laws mandating face coverings and CDC guidance highly recommending them.

Here, the employee has a serious health condition that renders them unable to perform the essential function of wearing a face covering.  As the DOL made clear in recent opinion letters, because leave is “being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” 29 C.F.R. 825.301(a)

Case closed.

Hat tip to my Littler colleagues Casey Kurtz and Alexis Knapp for their candid thoughts on this timely topic.

In the middle of the COVID-19 pandemic, the U.S. Department of Labor hit the pause button on pandemic concerns and returned at least for a moment to the good old fashioned F-M-L-A.

This morning, the DOL issued new model notices and forms to be used by employers in the administration of the FMLA. The notices and forms, though different in their appearance (think lots of small boxes, longer and far more numbered paragraphs, and even a few colors), are not necessarily game changers when it comes to substance. These new model documents tend to tweak the old forms around the edges, and as a result, they’re more likely to elicit a shrug of the shoulders than a high five.

Still, there are a number of changes, some for the better, some that are head scratchers. With the caveat that I’m still digesting this new paperwork, here are some of my initial takeaways:

Notice of eligibility

  • Separate sections outline employee rights and responsibilities generally in a clearer manner than what we’re used to in the past. But DOL takes up a ton of real estate to get there.  Longer is very rarely better.  But is this time the exception?
  • The notice includes a host of check boxes to specify precisely which family member you will care for. I guess this is good?
  • The notice provides a much clearer explanation of how employer-provided, accrued paid leave runs concurrently with FMLA
  • Unfortunately, it restates what has always been misleading about the form: that the 15-day period to return certification runs from the time the employer provides the medical certification, which is not true.  The employee has 15 days from the time they receive the certification, not from the time the employer actually sends it out. (See 29 CFR 825.313b) The date the employer sends and the date the employee receives are always two different dates unless the employer emails the documents. This could have been an easy fix, but DOL swung and missed on this one. Consequently, confusion remains.

Designation Notice

  • The Notice makes clear that employers are obligated to designate FMLA leave whenever leave is covered by FMLA, even if the employee and/or employer do not want FMLA to apply. This harkens back to its 2019 opinion letters in which DOL made clear that “neither the employee nor the employer may decline FMLA protection for leave.”
  • If need for leave changes, the DOL tells us in this new form that the employee is to notify the employer “as soon as practicable if the dates of scheduled leave change, are extended, or were initially unknown.”  This pronouncement undermines an employer’s call-in requirements.  Technically, this is a regurgitation of the regulations, but it really should be edited by any employer that has a specific call in procedure so there is no confusion.
  • Like the Notice of Eligibility, this form again offers a clearer explanation of how paid leave will run concurrently with FMLA
  • The most notable change, however, might very well be DOL’s effort in outlining the steps that an employee should take to cure an incomplete or insufficient certification.  Here, the DOL requires the employer to specifically explain what is missing and/or insufficient.

Medical Certification

  • Unlike its predecessors, this new certification makes clear that an employer dare not request certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care. Yeah, this is a no brainer, but plenty of employers still get this wrong, and clearly, DOL thinks so, too.
  • Notably, the new form requires a “best estimate” of the employee’s or family member’s future treatment, which surely will be helpful to employers
  • Back when the draft forms were circulated by DOL last fall, I complained that the main portion of the proposed medical certification form consisted of a series of boxes associated with a “serious health condition” or pregnancy that the health care provider simply needs to “check” without giving much thought to the situation. This particular section, I argued, would lead the physician to conclude that he/she is obligated to check one of the boxes so as to confirm that the employee or family does indeed have a serious health condition.  In other words, simply checking a box causes the doctor to make a legal conclusion rather than provide actual medical facts to allow the employer to make the ultimate determination as to whether the absence is covered by the FMLA. In the final version of the certification form, however, DOL added a box in which the health care provider could confirm there is NO serious health condition. Bingo!  

These new forms are not without some oddball issues.  At the top of my list, here are two for now: 

  1. Every new notice and form requests that the employee’s name be written at the top of each page. What are we, second graders?  Come on, dumb idea.  This creates needless work.
  2. I’ve always thought it is ridiculous that the medical certification form does not – as its VERY first question – ask that the health care provider provide the medical facts supporting the employee’s need for leave. Seems simple enough, right? After all, the employer wants this basic information right out of the gate to understand why the employee can’t come to work. This ridiculousness only gets worse under the new certification form, as it’s not until page 3 (of 4) of the new form that the health care provider is asked to describe any (additional) medical facts about the condition.

The DOL Wants Our Opinion

Along with its new notice and forms, the DOL also published a request for information (pdf) asking employers and employees for their feedback on potential changes to the FMLA regulations.  Initially, the DOL generally asked what employees and employers “like to see changed in the FMLA regulations” to better put into effect everyone’s rights and obligations under the FMLA?

But then DOL drilled down further. For example, the agency is seeking our opinion on:

  1. What, if any, challenges have employers and employees experienced in applying the regulatory definition of a serious health condition?
  2. What, if any, specific challenges or impacts do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?
  3. Best practices and suggestions to improve implementation of the Act’s intermittent leave provisions.
  4. What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave? For example, do employees convey sufficient information to notify employers that the employee may have an FMLA-qualifying reason for leave or that the employee is requesting FMLA leave?
  5. What, if any, challenges employers and employees have experienced with the medical certification process that are not addressed by the newly revised forms?
  6. Whether it would be helpful to provide additional guidance regarding the interpretations contained in any of the opinion letters issued over the past two year.
  7. Specific information and any available data regarding other specific challenges that employers experience in administering FMLA leave or that employees experience in taking or attempting to take FMLA leave.

Comments are due to the DOL by September 16, 2020 (60 days after this publication).  Whether any of our input will ever see the light of day is anyone’s guess, especially if there is a new occupant in the White House after this November’s general election.

Either way, I’m sharpening my pencil to start my first draft . . .

Sadly, too many of my telephone conversations with clients over the past few months have involved layoffs. Furloughs. Elimination of jobs.

Of course, we’ve also discussed the great unknown of when some of these employees will be brought back to work.

At times, questions have arisen over how a furlough might impact an employee who currently is on FMLA leave or has requested FMLA leave for a time during the furlough.

What takes precedence?  The furlough or the FMLA leave?

What is a Furlough?

First things first. Let’s make sure we understand the terminology.

The term “furlough” does not necessarily have a precise legal definition, but it generally refers to a forced period of time off work without pay and is intended to be used for a temporary or limited duration. During the period of furlough, the employee remains employed and typically remains eligible for benefits (depending on the terms of the employer’s policies and plan documents).

During a furlough, the employee has no work schedule, since the employee is not expected to work.  Placement on a furlough assumes – at least at the outset – that the employee will be reinstated to work, though it often is unclear when the employee will be recalled.

Occasionally, the term “temporary layoff” is used to describe a furlough, but don’t be confused.  A temporary layoff in this context does not mean employment is terminated.

How is FMLA applied during a furlough?

Do the FMLA regulations speak to this issue? No.

How about case law? No.

With the caveat that we don’t have a ton of great guidance on this issue, I counsel employers that they cannot exhaust FMLA leave during a furlough for a few reasons:

  • Most importantly, and from a practical standpoint, the employee is not scheduled to work during a furlough – naturally, they are on a forced leave of absence that usually is unpaid.  As such, there is no work schedule from which to take FMLA leave.Think of it similar to a teacher who is on FMLA leave at the time the school year ends and summer break begins. When summer break begins, the teacher no longer is expected to come to work, even though the school has not necessarily closed operations. As of summertime, the teacher has no work schedule, similar to a furlough. Because there is no work time, there is no schedule from which to take leave. Therefore, the employer does not exhaust the employee’s FMLA leave time over the summer. Leave could pick up again in the fall when the employee is expected to return to work (so long as he/she has FMLA leave remaining).Same concept here. Because there is no work schedule from which to take leave during a furlough, FMLA leave cannot be exhausted.
  • The FFCRA is a bit persuasive here. The DOL has advised that furloughs cut off an employee’s use of paid sick leave and paid FMLA leave under the Families First Coronavirus Response Act (FFCRA). In FAQ #26-28 of the DOL’s guidance to FFCRA leave, the DOL very clearly takes the position that FFCRA leave is not available during periods of furlough or closure of the workplace.  This leads to the conclusion that FMLA should be treated in the same fashion, since FFCRA leave is interpreted through the lens of FMLA.
  • It’s also persuasive that federal agencies take the position that federal employees cannot take FMLA leave during a furlough, leading us further to the conclusion that the same applies to private-sector employees.  See, for instance, the Treasury’s position on FMLA during furloughs.

Does an Employee Accrue Hours Worked While on Furlough?

Simply put, no. This is a tough reality for employees. As we know, an employee must have worked 1,250 hours at the time FMLA leave is to begin. When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for FMLA leave, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act. 29 CFR § 825.110(c). When an employee is on furlough, of course, they are not performing work for the employer, so keep in mind they are not accruing any hours toward the 1,250. (H/T Sarah Simmons!)

Be Mindful of State and Local Paid Sick Leave Laws

Prior to the COVID-19 pandemic, it was fairly clear that employees could not use state/local paid sick leave during a time they were on furlough.

However, a handful of locations now allow paid sick leave (PSL) to be used during the pandemic.  Take, for instance, San Francisco’s emergency PSL, which can be used by employees who are furloughed, or Philadelphia’s PSL, which can be used if the employee “would have been eligible to use . . . sick leave had [the employee] not been laid off or furloughed.”

Before denying state/local paid sick leave to an employee during this pandemic, be sure that you are well aware of the local guidance on how PSL is paid out if an employee is furloughed.