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 . . .

I am often asked to share my favorite resource materials and conferences involving the FMLA and ADA.

I recognize budgets are tight this year. So, if you have the ability to attend just one conference this year on the FMLA and ADA or if you’re looking for a free FMLA resource, keep reading.

First, the (Free) FMLA Bible

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. Although this little FMLA blog catches a few of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes all FMLA decisions from this past year.

This year’s report is as comprehensive as always — it summarizes 2020 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

This year’s report, which was just released and is FREE, can be accessed here (pdf). I encourage you to print it off and keep it by your side as a valuable FMLA resource.

If You Want the Conference AND the Materials

One of my favorite presentations I provide each year takes place at the ADA and FMLA Compliance Update hosted by the National Employment Law Institute (NELI). NELI’s ADA and FMLA conference is an event you cannot miss. Really, I cannot say enough about the organization — owners Sascha and Todd Miller put together the finest experts on ADA and FMLA who tackle the key issues in a practical way.

This year, the ADA & FMLA Compliance seminar will be virtual and offered twice — April 7-9 and April 21-23.  This year’s seminar information can be accessed on NELI’s website here. (Mention my name and they’ll give you a nice discount.)

Not to scare you away, but I will be presenting on the FMLA at both sessions. And I’m always excited to present along side David Fram, who (in my humble opinion) is the single best presenter on ADA issues in the history of the universe.

Among other hot-button issues, we’ll cover the following on FMLA:

  • How the Biden Administration’s Department of Labor likely will enforce FMLA issues
  • The latest developments at the DOL, including recent FMLA opinion letters
  • FFCRA update, assuming there is an update in early April!
  • Employee notice issues, particularly where notice must be provided to the employer and a third-party administrator
  • How far employers can go when requiring employees to provide notice of intermittent absences according to specific employer procedures
  • Returning an employee to the same or equivalent position
  • Best practices in managing the medical certification process, including how to handle vague or incomplete certification and if the certification is turned in late
  • Effectively handling fitness for duty issues
  • Tips for managing intermittent leave abuse, including fraudulent use of leave and the good faith, honest belief defense

BONUS: the materials you receive from the NELI seminar are to die for! No question, you will keep your NELI binder close by throughout the year to help you address difficult ADA and FMLA questions. See you there!

Looking for other awesome FMLA resources? Click on the companies below and on the right side of my blog to learn more about their services and products!

Kelly, an administrative assistant for Penn State Health, racked up quite a few absences over a short period of time. Some of these absences related to GI issues that ordinarily would be covered by the FMLA.

In Kelly’s case, however, she repeatedly failed to timely report these absences, which led to attendance points.

Penn State Health’s call-in procedures required employees like Kelly to make two calls whenever they wanted to request FMLA leave:

1) one call to a designated “call-off” line (within 24 hours after the absence); and

2) one call to the Company’s third-party administrator to report the need for FMLA leave (within 15 days after the absence).

This story is very simple: when Kelly failed to call one line or the other (or both), her absence was not protected by the FMLA and she incurred points. Despite repeated warnings to timely report her absences, Kelly failed to do so. When she reached nine points, her employment was terminated.

As the story goes, Kelly sued Penn State Health, claiming various FMLA violations.

No soup for you, said the trial court, which quickly dismissed her claims.  Why? She did not follow the employer’s reasonable call-in procedures for reporting her need for leave, and she identified no reason why she could not follow them.

Case dismissed.  Soutner v. Penn State Health (pdf) My friend, Megan Holstein, alerted me to this case here. (Thanks Megan!)

Insights for Employers 

This employer win is a reminder to the rest of us:

  1. Maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave. Even better, require two calls — one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf.  If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused.
  2. Revise your FMLA policies.  Include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you might also want to include expectations for completing a leave of absence request form, which I also recommend.)My “model” policy provision looks something like this:When you contact Human Resources to report your need for leave, you must provide at least the following information:

    ►  The specific reason for your absence, with sufficient information to allow us to determine whether the FMLA may apply to your request;

    ►  When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

    ►  A telephone number where you may be reached for further information

  3.  Set a deadline for the employee to report an absence. But my goodness, set more stringent deadlines than this employer did! For the life of me, I can’t figure out why so many employers give employees such a long time to report their absence. Here, Penn State gave the employee 24 hours to call into its call-in line, then another 15 days to call into its third-party administrator. 15 days!?! Sheesh! Imagine all the things I could do in 15 days? I could go on a two-week beach vacation and still have time to spare before I have to report my absence. I could paint my back deck the color fuchsia 14 different times and still have a day to spare before I have to call in my absence. Really. Why. This. Long? Unless your operations are better off otherwise, set a much tighter time period (e.g., one or two hours before/after the shift starts) for reporting the absence.
  4. One final thing about your call-in procedures. At the end call-in requirements, make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them.

One more thing. Maintaining effective call-in procedures is an excellent tool to combat FMLA misuse.  If you don’t have these 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 best opportunity possible.

Two calls are better than one. Do it today.

Recently, an email I received from a HR-related organization caught my eye.

The email was fashioned as a Q&A.  One of its members posed a question that I’ve paraphrased here:

Our practice is to reach out to employees on FMLA leave once a month to check in and see how they are doing.  So long as we just check in and do not discuss return to work, are allowed to do this?

The organization called upon a legal expert to answer, and she stated the following (again I paraphrase):

Although the regulations do not speak to such conduct, these types of check-ins are discouraged as they could cause an employee to feel pressured to return prior to the scheduled end of an approved leave.  Only check in when FMLA leave is about to expire.

I cringed.  That’s not right.

When it comes to communications with employees during FMLA leave, I follow two general rules:

Checking in on an employee so they can perform work for you: BAD

Checking in on an employee to see how they’re doing, assess possible accommodations to help them return, and confirm whether their return to work is/is not on target: GOOD

Insights for Employers

There are several reasons why I think it’s critical to stay in contact with your employee while they are on FMLA leave. Let’s review:

  1. Staying in touch shows your employee that you care.  Friends, this is plain ‘ol common sense. When you check in on an employee during a leave of absence, the gesture communicates to your employee that you care about them, that you consider them a part of the team, and that you want to keep them engaged even though they are not presently at work. Conversely, when you buy into legalese that you shouldn’t have any contact with your employee, you lose a golden opportunity to simply show you care. A gentle reminder from Maya Angelou is appropriate here: your employees will not remember you for what you said or did, but they will never forget how you made them feel.
  2. Staying in touch allows you an opportunity to engage in the interactive process. Court have increasingly reminded us that a request for FMLA leave also can be a request for a reasonable accommodation. If we stay in touch with the employee, we can then engage the employee in a more informed dialogue about temporary adjustments we might be able to make to help the employee return to work. If no adjustments can be made, no sweat. Leave simply continues.
  3. Staying in touch gives the employer more flexibility to take action once FMLA is exhausted. A number of years ago, former EEOC Commission Chai Feldblum and I presented at a DMEC conference on leave as a reasonable accommodation. During that session, we discussed how employers should communicate with their employees while on leave as part of a robust interactive process.  We lamented that employers generally conduct the ADA’s undue hardship analysis way too late — only after the employee has exhausted FMLA leave.  Notably, Commissioner Feldblum acknowledged that employers are well within their right as early as “day one” of an employee’s FMLA leave to assess whether the absence constitutes an undue hardship (once FMLA leave is exhausted). However, if you don’t stay in contact with your employee, this table is never set and becomes a missed opportunity.
  4. Staying in touch allows you keep tabs on your employee. You knew this reason was coming, but it’s still important, amirite? If you simply lose touch with your employee for three entire months (or more!) while they’re away, you are not being proactive in fighting potential or actual misuse of FMLA leave.

In offering these reasons for staying in touch with your employee, I want to be clear: these regular communications should not be used to require employees to perform work. I covered the pitfalls of doing this in a previous post. To the contrary, these regular calls — about once a month or so — will go a long way to keeping your employee engaged and invested in what you are about.

The questions have come in all kinds of shapes and sizes.

Q: I furloughed several of my employees in 2020. Does the time on furlough count toward their FMLA eligibility?

Q: We forced an employee to take a leave of absence when they exhibited symptoms of COVID-19, which led to a multi-week leave of absence. Does the fact that we forced them to take leave change whether those hours should be credited toward FMLA eligibility?

Q: We have an exempt, managerial employee who in this past year took all 12 weeks of FMLA leave, and six additional weeks of Company-provided COVID paid leave because of complications due to COVID-19.  He also was intermittently absent for illness (due to residual COVID issues) to the tune of another four weeks.  We’re now in a new FMLA year and he is requesting FMLA leave again. Is he even eligible for FMLA leave since he didn’t work 1,250 hours?

1,250 Hours is an Exact Science

When it comes to the FMLA’s eligibility requirements, there is no ambiguity. At the point in which an employee requests FMLA leave for the first time in an FMLA leave year, the employee must have actually worked 1,250 hours for the employer within the previous 12 months.

What does “actually worked” mean?  The FMLA takes its lead from the terms outlined in the Fair Labor Standards Act. In general, “hours worked” includes all time an employee must be on duty or any additional time the employee is allowed (the FLSA uses the terms “suffered or permitted”) to work.

The Department of Labor makes clear:

The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

Because the FMLA requires the employee to actually perform work to earn the hours necessary to be eligible for FMLA leave, it means that furloughed hours do not count toward eligibility.  It also means the employee who was forced off work due to symptoms of COVID-19 was not actually working for the employer.

The result remains the same even if you paid the employee for the time they took (or were forced) off work.

What About Exempt Employees whose Hours are Not Known?

Exempt employees pose a particular dilemma for employers under the FMLA because the FMLA regulations effectively presume that they are eligible for FMLA leave, at least from an “hours worked” standpoint, and the employer has the burden to prove otherwise.  Keep this key provision in mind from the regulations (at 29 C.F.R. 825.110(c)(3)):

In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked . . . the employer has the burden of showing that the employee has not worked the requisite hours.  (My italics, not DOL’s)

Very few employers maintain hours worked for their exempt employees.  So, it may be difficult to establish that the employee above has not worked the requisite 1,250 hours required by the FMLA.  Using this employee as an example, let’s assume he typically would have worked around 1900 hours for the year (~48 weeks x 40 hours/wk).  He took 22 weeks of leave in the previous FMLA 12 months, which accounts for about 880 hours (22 weeks x 40 hours/wk).  1900 – 880 = 1020 hours worked  

This falls a fair amount short of the requisite 1,250 hours required under the FMLA.  Does this simple math prove that this exempt employee is not eligible for FMLA leave?  Not yet. Check out my tips below.

Insights for Employers

A couple of things to keep in mind when it comes to employee eligibility for FMLA leave:

  1. Where an exempt employee’s eligibility for FMLA leave is in question, remember that employers must clearly demonstrate the employee did not work 1,250 hours.  In the example of our employee in the question posed above, can you show, for instance, that the employee regularly works a typical 40-hour a week schedule in the office and then performs little or no work outside regular work hours?  Can you show that he never sends or reviews work email outside work hours?  Or that he never uses his cell phone for work after hours?  Is your exempt employee covered by a collective bargaining agreement or other employment agreement that sets out hours worked? These questions and others like it are helpful to better assess the total hours worked by your employee.
  2. Remember that eligibility is checked every time the employee requests leave for a “different FMLA-qualifying reason.”  In other words, if the reason for leave is the same and the employee previously was eligible within the same FMLA year, the employee is entitled to take leave in this instance.  However, if the employee requests leave for a new qualifying reason in the same FMLA year, or if it’s for the same reason within a new FMLA year, the employer should re-test eligibility.  See 29 C.F.R. 825.300(b).  This could be tricky right now for all of you folks on a calendar year FMLA, as you are checking eligibility right now at the turn of the year.
  3. I know we’re talking FMLA here (and why would we want to fill our minds with anything else?), but keep in mind that state and local leave laws and ordinances likely have different eligibility requirements than FMLA. Check those state and local requirements so you know how to address the eligibility question.

Who ever said FMLA was boring, especially during a pandemic?

Last night, President-elect Joe Biden unveiled his plan to provide much-needed relief from the COVID-19 pandemic, highlighting the need for a more aggressive vaccination rollout and additional cash payments to Americans to help the country recover.

Called the American Rescue Plan, Biden’s plan is expected to cost $1.9 trillion.

Along with a general overview of the proposed economic relief plan, employers got a sneak peek into the new administration’s plan for paid leave. Touting that his Plan would extend leave benefits be to 106 more million employees, the President-elect intends to broaden leave obligations for a host of new employers and sweeten the amount of leave available to employees.

Here are the high level points on Biden’s wish list:

  • Covered employers expanded:  Biden’s paid leave plan would effectively cover all employers with a one-two punch. First, it would require employers with under 500 employees to again provide leave under the Families First Coronavirus Response Act (FFCRA). Second, the plan would require employers with 500 or more employees to provide FFCRA leave. Biden also would remove any exemptions for those employers who are smaller than 50 employees.
  • Eligible employees expanded: The Biden plan would restore leave rights to first responders, a group which often was exempted by their employers from leave under the FFCRA. Under the FFCRA, employers had the flexibility to deny leave to this group of employees. But not in a Biden administration. Closing this “loophole,” Biden noted, would extend emergency paid leave to up to 106 million additional workers.
  • Amount of leave increased: Under the Biden plan, employees would be eligible to take “over 14 weeks of paid sick and family and medical leave to help parents with additional caregiving responsibilities when a child or loved one’s school or care center is closed; for people who have or are caring for people with COVID-19 symptoms, or who are quarantining due to exposure; and for people needing to take time to get the vaccine.”
  • Federal employees covered: Under the FFCRA, federal employees were entitled to paid sick leave, but not paid FMLA.  Biden’s plan would provide paid FMLA leave to federal workers, which would expand protections to approximately 2 million Americans who work for the federal government.
  • More money: Biden would increase the maximum paid leave benefit to $1,400 per week which, he claims, would provide full wage replacement to workers earning up to $73,000 annually.
  • Tax credit: Under the Biden plan, smaller employers would fare far better, as the plan would reimburse employers with less than 500 employees for the cost of paid leave, as was the case under FFCRA.  As for those employers with 500 or more employees? No soup for you!  Larger employers would not reimbursed.
  • State and local governments would be reimbursed for the cost of this leave, which was not the case under FFCRA. The Biden lacked any details as to whether school and other public employers would fall within this scope.

Under the American Rescue Plan, President-Elect Biden would extend these emergency paid leave measures through September 30, 2021 “to limit the spread of COVID-19 and provide economic security to millions of working families.”

See the Biden team’s fact sheet (page 7-8) for more details.

Of course, this is simply the President-elect’s opening demand. Buckle up – employers are in for a wild ride.

As we turn the page to a new year, employers covered by FFCRA face a host of questions now that FFCRA is purely voluntary.

For instance, employers are navigating questions such as: Should an employer voluntarily provide FFRCA leave to eligible employees now that leave is no longer mandatory? Is an employer allowed to provide emergency paid sick leave but not paid FMLA leave? (Or visa versa?) And does the employee receive a whole new bucket of paid leave for use in 2021?

So many questions, and I know you’re looking for answers. Below, I’ve taken a stab at my take on some the common questions you’ve posed to me.

Two Key Presumptions

When tackling FFCRA in 2021, keep in mind two critical principles:

  1.  FFCRA has always provided for a maximum of 2 weeks/80 hours of emergency paid sick leave (EPSL) and a maximum of 12 weeks of emergency paid FMLA (EFML) between April 1, 2020 and March 31, 2021.  No more.
  2.  As of January 1, 2021, FFCRA expired.  On that day, it effectively became a tax credit statute. Its substantive provisions no longer are enforceable.

With these principles in mind, let me tackle a few of the common FFCRA questions posed to me:

Q.  Does an employee receive a new bank of EPSL or EFML in 2021?

A.  Remember Principle #1 above. There is no magical new bank of time as of January 1, 2021. The FFCRA makes clear that an eligible employee received a maximum allotment of 2 weeks/80 hours of EPSL and 12 weeks of EFML, and they earned nothing more when the calendar turned to 2021.

Let’s break this down with some examples:

EPSL

If an employee used one week of EPSL on or after April 1, 2020, the employee has one additional week of EPSL to take in 2021. However, if the employee used the entire allotment of 2 weeks/80 hours in 2020, an employer cannot provide the employee additional EPSL in 2021 if they want to take the tax credit.

EFML

This same concept generally applies to EFML, but let me add a caveat. To take EFML in 2021, my read is that you must have classic FMLA leave available.

Why is that? Keep in mind that, under the FFCRA regulations, an employee could not take EFML in 2020 if they did not have any classic FMLA time available. 29 CFR 826.70(b)  It seems to me that the same holds true in 2021 as well.

Let me give you two examples:

  • Employer uses a calendar year for its 12-month FMLA leave period.  Let’s assume the employee uses 8 continuous weeks of EFML in 2020.  As of January 1, 2021, the employee would earn back another 12 weeks of FMLA leave, so he could use the balance of 4 weeks of EFML that he did not use in 2020.
  • Employer uses a rolling FMLA year.  Employee uses 6 continuous weeks of EFML beginning April 1, 2020 and then takes 6 weeks of classic FMLA beginning on June 1, 2020.  FMLA will not roll back on until April 1, 2021, but he’s still sitting here right now with 6 weeks of EFML that he did not use in 2020. To be consistent with Section 826.70(b) that I referenced above, he cannot take EFML because he does not earn back any FMLA time until April 1, 2021. If he had not used 6 weeks of classic FMLA in June 2020, six weeks of EFML would be available to him to use prior to March 31, 2021.

Let me be clear – I’m giving you my best take as I read together the FFCRA and the December amendments, and I recognize there may be a difference of opinion on this point. Here’s hoping we receive some guidance from DOL pronto so we can administer EFML with appropriate agency guidance in 2021.

Q. As of January 1, 2021, should an Employer Count EFML leave (caring for a child whose school or daycare is closed) against classic FMLA?

A.  Keep in mind Principle #2 above. FFCRA, which amended FMLA, expired as of December 31, 202o, so any leave taken as EFML as of January 1, 2021 can no longer be considered FMLA.  Put another way, FFCRA is effectively a tax credit statute as of January 1, 2021, the substantive portions of the Act no longer apply, and we cannot draw down classic FMLA by EFML provided in 2021.

Q.  May an employer voluntarily offer EPSL, but not EFML, or visa versa?

A.  Arguably, yes. The FFCRA contained two different acts: EFML (Division C of the FFCRA) and EPSL (Division E of the FFCRA). Division G of the FFCRA discusses tax credits for both EPSL and EFML (among other things). The December 2020 amendments added sections relating to the tax credit, but EFML and EPSL still remain two separate sections. As a result, we can make a pretty strong argument that an employer has the discretion of providing only EPSL and not EFML, or visa versa, in 2021.

Q. Can an Employer tweak any of the provisions under FFCRA and still obtain the tax credit?

A. Wouldn’t it be nice if you could pick and choose your favorite parts of FFCRA and still get the tax credit? Sadly, that’s not how it works. Of course, you have the freedom to tweak the conditions of FFCRA leave, but if you do, you can’t take the tax credit.

* * *

Hat tip to fellow FMLA nerds Sarah Wisor and Ashlee Brennan for the great conversation on some of these issues!

For the rest of you, let’s keep the conversation going. As I referenced in last week’s post, let me know if you think I can be of help.