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.

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.