FMLA and ADA friends:

You’ve known me long enough to appreciate that I don’t engage in a whole lot of shameless self-promotion.  Well, ok, some, but not so distasteful that you’ve given up on me, right?

So, can you indulge me one time?

Over the past several years, you are facing increasingly difficult FMLA, ADA and state leave issues, and you likely have limited internal resources to help. Some of you have modest-sized HR and legal staffs, and you could use the outside help when these difficult issues arise. Others of you just don’t have the time to deal with the minutiae of leave and accommodation issues, and you want these issues addressed by someone with the expertise to handle them efficiently. All of you are dealing with loads of leave and accommodation issues unlike ever before.

All of you have grown weary of running up costly and unpredictable legal bills, and you need an alternative.

Here is your alternative.

My “CALM” service — Compliance in Accommodations and Leave Management — is a flat fee monthly retainer in which I assist employers with day-to-day FMLA and state leave as well as ADA questions. Under my “CALM” service, I provide employers and third party administrators practical guidance and clear direction on the most complex and difficult leave management and accommodation questions you face, answers to which you won’t find online or even with a ton of research. You and I develop the arrangement in a manner that works best for you – whether it’s a series of short calls, quick email communications, or several calls or emails that require longer, strategic discussions. The arrangement is flexible, allowing you to designate the individual(s) to contact us directly.

Just as important, this monthly retainer allows you to address critical leave and accommodation issues with the same, predictable legal cost month after month.

Examples of Issues Covered by my CALM Service

Over the past few months, the following is a sampling of the questions I have helped employers address with our CALM service:

  • How to deal with FMLA administration where an employee returns certification after the 15-day deadline or never returns one at all
  • Helping an employer determine whether an employee’s strange behavior was actually a request for leave or an accommodation
  • Administering FMLA leave in a workforce where employees hours vary from week to week
  • Whether a TPA should designate an absence as FMLA leave where an employee sought leave to care for a spouse, but where the only “caring for” function was babysitting the kids (this issue is hardly a slam dunk – it required discussion and analysis of the Gienapp case, which I highlighted in a previous blog entry)
  • Best practices in applying the qualifying exigency regulations where an employee sought rest/recuperation leave upon her spouse’s return from military service
  • Providing critical guidance to an employer in responding to DOL inquiries during an audit of FMLA administration
  • Addressing potential light duty accommodations for a pregnant room attendant at a luxury hotel who was placed on restrictions throughout her pregnancy
  • Helping employers draft and revise model correspondence to an employee seeking a workplace accommodation
  • Reviewing a customized FMLA medical certification form and reasonable accommodation questionnaire an employer wanted to implement for its multi-state locations
  • Answering intermittent leave questions under the Massachusetts paid FMLA leave law, and other similar state laws

Access to Monthly Leave and Accommodation Updates!

My CALM clients also have the opportunity to receive monthly updates on any new state and local leave or accommodation law that was enacted within the previous month.  The monthly updates provide extensive summaries on these new laws and highlights those laws that have been passed by the state/local legislature and await the Governor’s or chief executive’s signature.

How Do We Begin?

Let’s discuss this service further!  Email me at jnowak@littler.com.

The Department of Labor is quickly catching up to the telemedicine explosion and America’s remote workplace.

In an effort to ease FMLA administration and address the lightning-fast move toward telemedicine visits during the COVID-19 pandemic, the DOL issued guidance yesterday making clear that a telemedicine visit with a health care provider can be used to support FMLA leave.

As you may recall under the FMLA, one way for an employee to prove they have a serious health condition is to attend an in-person visit with a health care provider within seven days of the first day of incapacity. However, the COVID-19 pandemic has put the clamp on the ability to attend in-person visits with a physician, as medical offices across the country turned to telemedicine early on in the pandemic.

In yesterday’s guidance, the DOL cemented a position it actually announced earlier this year — that is, for purposes of establishing a serious health condition under the FMLA, a telemedicine visit is considered an in-person visit for purposes of FMLA leave so long as the visit is:

  • an examination, evaluation, or treatment by a health care provider;
  • permitted and accepted by state licensing authorities; and,
  • performed by video conference.

This guidance may seem familiar to you, as the DOL issued an FAQ earlier this spring greenlighting telemedicine visits under the FMLA through December 31, 2020.  Yesterday’s guidance now extends this concept permanently. In this latest guidance, however, DOL made clear that video conferencing would be critical to meeting FMLA’s requirements, noting that “communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an ‘in-person’ visit.”

FMLA Postings Also Can Be Electronic

The DOL didn’t stop with telemedicine visits. As many American workers are working remotely, DOL also was wise to address an employer’s posting requirements in an increasingly remote workplace.

The FMLA regulations require covered employers to post in conspicuous places on their premises a general notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the DOL.

In additional guidance also issued yesterday, the DOL confirmed that electronic posting of the general notice will satisfy the FMLA posting requirements where all hiring and work is done remotely and an employer posts the appropriate FMLA notice on an internal or external website that is accessible to all employees and applicants. In doing so, employers must ensure they’ve informed employees about how they can access the electronic notice.

Where employers have employees working on-site and remotely, which would include the far majority of employers, the DOL notes that the employer may supplement a hard-copy posting requirement with electronic posting, but that the hard-copy posting still is required.  In these situations, the DOL encourages both methods of posting.

Virtual high fives all around!

Remember my post yesterday suggesting that FFCRA would be extended to 2021?

Well, that was a false start. Throw the five-yard flag on me.

Late last night, as I read through House Speaker Pelosi’s press release announcing a stimulus deal, I focused in on the following statement that the new stimulus bill:

Supports paid sick leave: The agreement provides a tax credit to support employers offering paid sick leave, based on the Families First framework.

Naturally, my tired brain read the “Families First” phrasing to mean that FFCRA stalwarts in Congress were able to negotiate an extension of FFCRA leave beyond its current expiration date of December 31, 2020.

Apparently, I was only half-correct, resulting in a two and one-half yard penalty.

Here’s the LATEST info:

FFCRA Leave Ends This Month, but Tax Credits Continue for Leave Voluntarily Extended to Employees

The current version of the bill, which is expected to be called for a vote this evening, results in the following:

  • Mandated FFCRA Leave ends on December 31, 2020
  • As of January 1, 2021, covered employers may voluntarily provide emergency paid sick leave or emergency paid FMLA Leave under FFCRA (as adopted earlier this year) and take the tax credit associated with this leave.
  • The tax credit may only be taken for leave through March 31, 2021.

In other words, FFCRA leave is no longer required, but if covered employers voluntarily provide these leave benefits through March 31, 2021, they are eligible to take the tax credit for the leave.

Please note: I am not reading this amendment to mean that an employer can take a tax credit for an entirely new bucket of FFCRA leave on January 1, 2021. No, no, no!  If an employee used 80 hours of paid sick leave (EPSL) earlier this year, for instance, they technically would not have had access to a new EPSL bucket on January 1, 2021. Therefore, the employer cannot take the credit for additional EPSL provided in 2021. That said, if the FMLA 12-month period resets under the employer’s policy, it seems apparent that an employee would be entitled to paid FMLA once again. Perhaps the DOL or IRS will provide updated guidance on this, but this interpretation seems to be the most logical based on a reading of the statutory text.

Also note: This bill does nothing for public employers, as unfortunately, they never were able to take the tax credit. For these folks, no mandatory FFCRA leave and no tax credit.

You want a taste of the new statutory language? Click here for 5593 pages of stimulus overload (pdf).

Don’t Forget State Laws

Like the federal government, many state and local governments enacted similar paid COVID-leave laws and ordinances earlier this year to assist employees dealing with COVID-19 or caring for family members affected by the pandemic. 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. 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 employers not covered by the federal law.

Some of these laws also expire December 31, 2020. But some do not. It is critical that employers be mindful of other paid leave requirements under state and local laws, as well as their own paid leave and PTO policies.

What else is contained in this House bill? 

For a more comprehensive analysis of this House bill, a few Littler colleagues and I review it here.

 

Yesterday, Congressional leaders agreed on a $900 billion stimulus package that would provide modest stimulus funding to Americans and employers to help them overcome the hardship created by the COVID-19 pandemic.

House Speaker Nancy Pelosi and Senate Democratic Leader Chuck Schumer issued a press release late yesterday indicating that, among other things, this latest stimulus package will extend the payroll tax subsidy for employers offering workers paid sick leave. (News outlets are reporting the same thing.) As such, it appears as though FFCRA leave will indeed be extended into 2021, and employers will have appropriate federal funding to cover emergency paid sick leave and paid FMLA leave taken after December 31, 2020.

Details are scarce as I write this post — I literally know nothing more at this moment — but I wanted to let you know what I’ve learned so far.

Stay tuned – I will report out more specifics as I have them.

Hearing the growing calls to provide clear guidance on the extent to which employers can require their employees to obtain the COVID-19 vaccine, the EEOC has updated its Technical Assistance guide “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” on the subject of the COVID-19 vaccine.

What the heck does this have to do with FMLA, you ask?

Well, not a whole lot.

But: 1) advising clients on the COVID-19 vaccine takes up much of my life right now, so humor me while I offer my initial impressions here; and 2) this issue is governed extensively by the FMLA’s big sister, the Americans with Disabilities Act, which contains specific restrictions on an employer’s ability to subject employees to medical examination and disability-related inquiries.

Takeaways from the Updated EEOC Guidance

We’ll be analyzing these new guidelines in the upcoming days, but here are my first impressions of the updated EEOC guidance:

  • Green light to require COVID-19 vaccine: In issuing this guidance, EEOC confirms that the COVID-19 vaccine is not a medical examination. Why is this significant? It effectively gives employers the green light to require that employees obtain the COVID-19 vaccine (subject, of course, to the exceptions noted below).  This is one of the key takeaways of this guidance.
  • Some requirements relating to screening questions: If the employer requires employees to obtain the vaccination, administered by the employer, the employer must show that any screening inquiries are job-related and consistent with business necessity.  There are two exceptions to this rule.  First, if the employer chooses to make the vaccine voluntary and the employee has the choice to answer (or not) pre-screening questions, this passes ADA muster.  Second, if the employer requires that employees receive the COVID-19 vaccine and the employee receives the vaccine from a third party with whom the employer does not have a contract (think Walgreens or CVS), the ADA is not implicated. Put another way, an employer can mandate the COVID vaccine so long as long employees obtain the vaccine from a third-party pharmacy or medical provider with no connection to the employer.
  • Proof: Employers can request proof of vaccine. Nice to get that important question quickly knocked off the list.
  • Accommodations must be considered: As expected, the EEOC maintains its long-held position that employers must consider ADA and religious accommodations when requested.
  • Direct threat still plays big role: Let’s assume that an employee seeks an ADA or religious accommodation to avoid taking the COVID-19 vaccine. What then?  At this point, the EEOC tells us that the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.” The EEOC advised that employers must conduct an individualized assessment of the usual four factors in determining whether or not a direct threat exists:
    1. the duration of the risk;
    2. the natured and severity of the potential harm;
    3. the likelihood that the potential harm will occur; and
    4. the imminence of the potential harm.
  • Refusal to Obtain Vaccine doesn’t mean automatic exclusion from workplace:  The EEOC makes clear that, even if you find that an unvaccinated employee poses a direct threat, the employer cannot automatically exclude them from the workplace.  The EEOC explains it this way:

If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

Practicality Should Rule the Day

On one hand, this latest EEOC guidance is welcome news for employers, as it gives us a road map (albeit with outstanding questions) for mandating vaccines. But, as I’ve shared with clients, the issue of mandatory vaccines is not as much a legal issue as it is a practical issue.

Sure, employers now have “legal” clearance to require vaccines, but the more important question is, “Should we require them?”

A couple of thoughts to keep in mind in the middle of this vaccine madness:

  • Deep breaths. Your rank-and-file employees’ access to the vaccine is still several months away. So, why the rush to figure out right now whether you will mandate the vaccine? You’re far better off taking a wait-and-see approach to see how the kinks get worked out.
  • Practical problems. How can you require a vaccine when many of your employees won’t have access to the vaccine till springtime? Let that sink in for a minute. Ok, I’ll move on.
  • More practical problems. When the vaccine is finally readily available, it’s likely that at least 30ish% of your workforce will decline the vaccine. What will you do then? Fire 30% of your workforce? Of course not, suggesting that employees have some leverage now and into the future.
  • Incentives. Start thinking about how you can strongly (but legally) incentivize your employees to obtain the vaccine. In the weeks ahead, we will be working with our clients to establish incentive programs to maximize the chances that employees voluntarily obtain the vaccine.  Be sure to discuss the legality of these incentives with your favorite employment attorney.

In the meantime, breathe.

Don’t. Forget. To. Breathe.

We’re going to get through this.

Thanks to those who attended my webinar last week with Matt Morris on “Navigating Difficult FMLA and ADA Issues in the Middle of a Pandemic.” You still can access the recording here (a short registration is required), and the presentation PowerPoint slides can be downloaded here (pdf).

To the nearly 11,000 people who registered for the webinar, thank you. Among other things, you were rewarded with photos of Golden Retriever puppies, beautiful owls, dancing dads and a father/son light saber duel!

As for the FMLA and ADA, we covered:

  • Is an employee who tests positive for COVID-19 covered by the FMLA?  Almost surely yes, we agreed, whether it is through inpatient care, incapacity plus treatment, or based simply on observing the CDC’s quarantine guidelines.
  • Does an employee’s generalized fear of COVID-19 trigger FMLA? Or ADA?  The Department of Labor noted that simple, generalized fear is not covered by FMLA, but we discussed during our webinar how underlying anxiety and other mental health conditions might transform these situations into FMLA scenarios.  We also warned of the potential employee relations issues involved with denying leave in these situations.
  • Can an employee take FMLA or extended ADA leave when they have an underlying health condition (or need to care for a family member) that may be worsened by COVID-19?  We spent a ton of time on this, because this particular question has plagued employers.  Through the use of case law and review of the FMLA regulations, we outlined the risks in denying FMLA leave to these individuals.  We also outlined the analysis if your employee is seeking extended or indefinite ADA leave in these situations, focusing on the kinds of questions you should ask your employees and managers to determine whether there is an obligation to provide additional leave.  In doing so, we analyzed the factors to consider to establish that an extended leave is an undue hardship.
  • Finally, we provided extensive guidance on handling employee work-from-home requests during the pandemic, focusing closely on the only meaningful court decision issued thus far during the pandemic: Peeples v. Clinical Support Options, which reminds us of the critical obligation to engage our employees in an interactive process to determine on an individualized basis whether telecommuting is an appropriate accommodation.

Want some insight into the ins and outs of these common, difficult pandemic issues?  Access the recording here!

Of course, we ended our webinar with a holiday jingle that reflected the mood of the day: “I’m Dreaming of a COVID-Free Christmas” sung to the tune of “White Christmas” by the Bing Crosby (a version which you can listen to or skip on the recording!):

I’m Dreaming of a COVID-Free Christmas
Just like the one we had last year
Where the only FMLA Temptation, is an Exotic Beach Vacation
Caught on TikTok, to ruin a Career

* * *

I’m Dreaming of a COVID-Free Christmas
For every Employee I supervise
Where My Employees complain of Migraines
Or good ‘ol chronic back pains
These classic FMLA excuses, I need not incentivize

* * *

I’m Dreaming of a COVID-Free Christmas
With every telework request I receive
But what I hope isn’t part of the ask
Are unlimited breaks and a stand up desk

 

We leave you, as we did during our webinar: There will be life beyond this pandemic, and it will be wonderful

I wish you a peaceful, healthy and happy holiday season!

It’s year end.  And although the pandemic has taken a sledgehammer to business profits across the country, some employers are set to issue year end bonuses. In fact, a fair number of employers are set to award bonuses to employees in recognition of their commitment to customers and clients during the pandemic.

Perhaps you offered a pay incentive to employees to improve attendance or production during the pandemic. Under this incentive program, employees are downgraded for any tardiness or absences (even for FMLA or ADA-covered leave), which, in turn, disqualifies an employee from receiving the incentive.

In these situations, can an employer disqualify an employee from the bonus or incentive?

Let’s Cover FMLA Absences First

In short, yes, an employer can withhold a bonus from an employee who is ineligible for the bonus due to FMLA-related absences.

Why?

The FMLA regulations provide in relevant part:

. . . if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.  For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

29 C.F.R. § 825.215(c)(2) (my emphasis and bold).

Notably, when qualifying employees for, and/or calculating bonus payments under the FMLA regulations, employers must treat employees who take FMLA leave the same as those who are on “an equivalent leave status for a reason that does not qualify as FMLA leave.”

In the preamble explaining the definition of “equivalent leave status,” the Department of Labor states:

Equivalent leave status refers, for example, to vacation leave, paid time-off, or sick leave. Leave for a reason that does not qualify as FMLA leave refers, for example, to vacation or sick leave that is not for an FMLA purpose (i.e., the vacation or sick leave is not also FMLA leave). Thus, for example, if an employer policy does not disallow an attendance bonus to an employee who takes vacation leave, the employer cannot deny the bonus to an employee who takes vacation leave for an FMLA purpose (i.e., substitutes paid vacation leave for FMLA leave). However, if an employer’s policy is to disqualify all employees who take leave without pay from such bonuses or awards, the employer may deny the bonus to an employee who takes unpaid FMLA leave. If an employer does not count vacation leave against an attendance bonus but does count unpaid leave against the attendance bonus, the employer may deny the bonus to an employee who takes 12 weeks of FMLA leave, two weeks of which the employee substitutes paid vacation leave, but ten of which the employee takes as unpaid FMLA leave.

73 Fed. Reg. 67985 (Nov. 17, 2008).

In the above guidance, the DOL focuses extensively on the substitution of vacation or sick leave and not on the types of non-FMLA leave that are more difficult to compare and interpret against FMLA leave, such as leaves like military leave, jury duty leave, and other short periods of personal leave.  What’s worse, there have very few court decisions (almost none) interpreting the term “equivalent leave status,” and the FMLA regulations or the preamble to the regulations otherwise do not offer any real guidance.

Some Persuasive Authority?

Last year, one court offered us some guidance on this critical issue.  In Clemens v. Moody’s Analytics, Inc. (pdf), Greg Clemens argued that his former employer unlawfully prorated bonus payments owed to him under an incentive program offered by Moody’s. Under this incentive program, Greg was eligible to receive incentive payments for completing certain work throughout the year.  Under Moody’s incentive program, it prorated payments based on the length of an employee’s leave, regardless of the employee’s reason for leave. In other words, if you missed time — regardless of the reason — you lost bonus money.  Moody’s took this approach for all types of leave.  As a result, the federal appellate court ruled that Moody’s did not unlawfully interfere with Greg’s rights by prorating his bonus payments.

What’s the moral of the story? When qualifying employees for and/or calculating bonus payments or incentives, employers must treat employees who take FMLA leave the same as those who are on “an equivalent leave status for a reason that does not qualify as FMLA leave.” So, bottom line, if you deny bonuses and incentives to those on other, similar forms of leave — such as absences related to jury duty leave, military leave to ADA leave — you can deny the same bonus to the employee who took FMLA leave.

What about FFCRA Leave or State/Local Paid Sick Leave?

This year, many of us are providing leave to our employees under the Families First Coronavirus Response Act (FFCRA). Like FMLA, can you deny or prorate bonuses to employees who take FFCRA leave?

As you will recall, FFCRA consists of two parts: 1) paid emergency sick leave (EPSL), under which an employee can take up to 80 hours of leave (or two weeks) for any of six reasons identified due to COVID-19; and 2) paid FMLA (FMLA+), under which an employee may take up to 12 weeks of leave to care for a minor child if the child’s school or place of child care has been closed or is unavailable.

FMLA+ adopts the classic FMLA regulations, and the DOL left untouched any of its classic FMLA regulations (Section 215 above and otherwise) with respect to bonus payments. So, for the 12 weeks of FMLA+, it’s seems obvious that you can deny or prorate a bonus paid to an employee who took this form of leave. As above, we simply follow the FMLA regulations.

EPSL is a bit tougher, as there are no applicable guidance in its regulations. Surely there is an argument that this situation should be treated the same as FMLA+ and other forms of leave. In other words, if you treat other equivalent forms of leave in the same manner, you should be clear when it comes to EPSL. But admittedly, it’s clear as mud. In a similar vein, might we need to worry about state and local paid sick leave laws? 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. 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. These laws and ordinances typically do not speak to how you handle bonus payments. Because these laws generally provide leave in addition to any FFCRA entitlement, it’s critical that you determine how these laws impact your employees. Before making or denying bonus payments, put a call into your friendly neighborhood employment attorney to double-check.

Put Aside the Law – just for a Moment

When it comes to these year-end bonus payments, let’s keep in mind that: 1) we are in the human relations business, and 2) we’re all suffering through a pandemic of a lifetime where scores of parents will be left without usual child care to rely on, and will need to take leave for reasons dealing with COVID-19.  This is a time where we simply might want to give the employee the benefit of the doubt.

I know I just dole out legal advice, but months from now, we’re going to kick this pandemic and things will return to (relative) normal. At that point, when an employee has choices on where they work, do you want to be the one who stiffed them a few bucks on a bonus?

First came Pfizer. Then Moderna.

The COVID-19 vaccine is coming.

By the time you read this article, even more COVID-19 vaccines may very well be in the mix. But is a COVID-19 vaccine the antidote that brings much needed relief to workplaces across America?

Naturally, employers want to know: as employees return to work (whether from a leave of absence or as part of the transition from working from home), can they be required to obtain a COVID-19 vaccine before returning? Or can an employee legitimately object to taking the vaccine?

Yes, but with Some Caveats

Generally speaking, employers can require that their employees receive a vaccine. Our frame of reference is the annual seasonal flu shot, which is required by certain employers, such as those in the health care industry.

But doesn’t a pandemic only strengthen an employer’s right to require a vaccine before returning to work? One would think so, but we also don’t have a ton of guidance on the legality of mandatory vaccines in the workplace.  In 2009, the EEOC provided guidance on the question of whether an employer may compel all of its employees to take an influenza vaccine regardless of the employee’s medical conditions or religious beliefs. The EEOC responded as follows:

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

The Exceptions

As forecasted in the EEOC’s comments above, even if employers had the green light to require a COVID-19 vaccine before returning to work, they still have an obligation to consider accommodations based on religious beliefs and disabilities.

Religious Beliefs

As a few of my Littler colleagues pointed out in a recent white paper on this very issue, an initial concern involves the alleged failure to accommodate based on an individual’s religious beliefs. Here, employers must reasonably accommodate an employee’s sincerely held religious beliefs, observances, and practices when requested, unless accommodation would impose an undue hardship on business operations.  For instance, an employee may claim that they cannot comply with an employer-mandated vaccine because it conflicts with their religious or beliefs. When faced with an employee’s request to be excused from such a requirement, employers must assess three questions: 1) is the belief religious? 2) is the belief sincerely held? and 3) would providing a reasonable accommodation impose an undue hardship on the employer?

Reasonable Accommodation Because of a Disability

Employers may also have an obligation under the Americans with Disabilities Act (ADA) to allow certain employees to take a pass on the vaccine.  If an employee requests an accommodation from an employer’s COVID vaccine requirement because of a disability, the employer must determine whether the accommodation is a reasonable one and whether it imposes an undue burden on operations and on the health and safety of coworkers.  As with all ADA accommodation requests, employers will need to conduct an individualized assessment in each circumstance.

Again, as my colleagues point out, even assuming that an employee’s disability “poses a direct threat to his own health,” the EEOC expects employers to explore potential reasonable accommodations absent an undue hardship.

Start the Conversation Now

Access to a reliable COVID-19 vaccine is just around the corner.  And so are the accommodation requests. To avoid getting caught unprepared, it’s best for employers to identify a plan now for handling these accommodation requests in the near future.

Nothing ushers in the holidays like a COVID-related FMLA webinar.

Join me for my annual FMLA webinar, which comes to you, as always, free of charge!

When: Wednesday, December 9, 2020 (12:00 – 1:30 p.m. central time)

Online registrationClick here

The COVID-19 pandemic has left an indelible impact on the workplace, causing employers to deal with a wave of medical leaves and a shift to virtual workplace.  As a result, employers face a host of compliance issues in navigating leave and accommodation issues.

In this complimentary webinar, my good friend and ComPsych’s Matt Morris and I will tackle the most common and difficult leave and accommodations scenarios that employers have encountered during the COVID-19 pandemic and will provide practical suggestions on how employers can address these situations.

Through the use of case studies (and maybe a tiny bit of humor), we will cover:

  • Is an employee who tests positive for COVID-19 eligible for FMLA leave?
  • How to address an employee who has a generalized fear of returning to work because of the pandemic
  • Whether FMLA leave applies when an employee claims they cannot return to work during the pandemic because they have an underlying medical condition
  • Whether an Employee can take FMLA leave to sit at home during a pandemic with a family member who is considered high risk
  • Is physical presence at work critical anymore?  Handling work-from-home requests during the pandemic

And, of course, we’ll sing. We’ll definitely sing.

When you register (click here), please pose the most difficult question you want answered in this area, and we’ll do our best to cover it during the webinar.

Quick note:  This program has been submitted to the HR Certification Institute and SHRM for review and credit. Continuing Legal Education credit also will be available to attorneys attending the program.

As we enter the home stretch of 2020 [thank God!], clients are increasingly asking me: Will FFCRA be extended into 2021?

When Congress passed the Families First Coronavirus Response Act (FFCRA) in March, it set the Act to expire on December 31, 2020.

Wishful thinking at the time, wasn’t it? With the end of the pandemic now no where in sight, what are the chances the FFCRA is extended into 2021?

Quick Answer: I. Have. No. Idea.

But wait, before you close your web browser, I still have an opinion! Additionally, a recent study suggests that emergency paid sick leave provided under FFCRA actually has reduced the spread of COVID-19, yet another indicator that FFCRA may have life beyond 2020.

Chances of an FFCRA Extension are Likely

Hey, kids, try as we might, we can’t wish this pandemic away. And while we’re ridding ourselves of 2020 and toasting a New Year 2021, the pandemic surely will be our reality come January 1. As a result, there are plenty of reasons to believe Congress will act to extend FFCRA into the new year:

  1. The FFCRA enjoyed overwhelming bipartisan support. In March 2020, the U.S. House of Representatives passed FFCRA by a whopping 340-40 margin. The Senate gave it a thumbs up by a margin of 90-8.  Friends, this was passage of a paid leave law, a feat no Congress before it ever accomplished. Yet, in the wake of a national health crisis, Congress got its act together in mere days and overwhelmingly passed this bipartisan legislation. When it sinks in that the pandemic will continue to wreak havoc on American workers and their families after December 31 this year, it is not a stretch to conclude that Congress likely will act to extend FFCRA shortly before the Times Square ball drop.
  2. There is No Indication FFCRA has had a deleterious impact on American businesses. To be clear, I have no data to back up this statement. Anecdotally speaking, however, as I have counseled employers over the past eight months on this new law, I don’t get any sense from them that the FFCRA has negatively impacted business. This reality makes it far more politically palatable for Congress to extend paid leave benefits to American workers.
  3. The Government already has signaled the pandemic will extend well into the new year. Notably, the U.S. Department of Health & Human Services announced earlier this month that the Public Health Emergency declaration for COVID‑19 will be renewed for another 90 days, which began on October 23 (the date it was previously scheduled to expire) and will extend through January 20, 2021. Of course, this pronouncement is not dispositive of whether FFCRA will be extended, but it seems to be a strong indicator that the federal government has acknowledged we will remain in a pandemic for the foreseeable future and well 2021.

Study Shows that the Availability of FFCRA Leave has reduced the Number of COVID-19 Cases

Care for another reason why my money is on an extension of FFCRA? A recent study has shown that the availability of FFCRA leave actually has reduced the spread of COVID-19. On October 15, 2020, a study published in the Health Affairs Journal concluded that states which gained access to paid sick leave through FFCRA saw a statistically significant 400+ fewer confirmed COVID-19 cases per day.

Let that sink in for a moment. 400+ cases per day.

Led by Nicolas Ziebarth, Associate Professor in the Department of Policy Analysis and Management at Cornell University, the study, which is entitled, “COVID-19 Emergency Sick Leave Has Helped Flatten The Curve In The United States,” draws the following conclusions:

  • There were statistically significant decreases in the number of reported new COVID-19 cases for states whose workers gained access to paid sick leave as a result of FFCRA.
  • Specifically, there were 417 fewer reported cases per day in states where workers gained the option to take COVID-19-related sick leave through FFCRA.
  • This data represents a reduction of about 1 new case per day for every 1300 workers who gained the right to take up to two weeks of paid sick leave due to COVID-19.

As a result, the authors concluded that the availability to paid sick leave under FCRRA “has helped flatten the curve.”

Avoiding 400 confirmed cases in every state each day? Even if the data is a fraction of this number, it’s a compelling reason for Congress to extend FFCRA into 2021.

But then again, what do I know?

Hat tip: My colleague Stephanie Mills-Gallan, who alerted me to this study.