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.

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?