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?

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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 registration: Click 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.

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

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

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

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

Let Me Remind You of the Facts

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

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

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

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

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

Ugh.

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

What an expensive lesson, huh?

Insights for Employers

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

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

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

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

What are the lessons here?

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

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

The Facts

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

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

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

Is this a problem?

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

The Court agreed, finding that:

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

Insights for Employers

What’s the lesson here for employers?

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

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

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

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

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

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

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

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

To Vice President Biden

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

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

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

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

To President Trump

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

______________________________________________________________

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

Jon Hyman— Ohio Employer’s Law Blog

Dan Schwartz — Connecticut Employment Law Blog

Suzanne Lucas — Evil HR Lady

Kate Bischoff — tHRive Law & Consulting Blog

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

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

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

Decision Invalidating Parts of Rule and DOL’s Response

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

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

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

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

The DOL Stands Firm on the Work Availability Requirement

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

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

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

. . . if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.

In its analysis, the DOL observed, “leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.”  The DOL also revisited one of the FFCRA’s core purposes of discouraging employees who might be likely to spread the virus from reporting to work, and pointed out that work must be available for that purpose to be effectuated.

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

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

Definition of “Health Care Provider”

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

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

More specifically, for purposes of that exemption, the DOL revised the regulatory definition of “health care provider” to include only employees who: (1) meet the definition of that term under the existing FMLA regulations; or (2) are “employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”

Existing FMLA Regulations

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

Newly Revised FFCRA Regulations

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

Diagnostic: Includes taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.

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

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

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

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

  1. nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive, treatment or other integrated services;
  1. employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
  1. employees who are “otherwise integrated into and necessary to the provision of health care services,” such as laboratory technicians who process test results necessary to diagnoses and treatment.

The revised regulations then specifically exclude those who do not actually provide such health care services, even if their services could affect the provision of health care services, “such as IT professionals, building maintenance staff, human resources personnel, cooks, food services works, records managers, consultants, and billers.”

The DOL provided an “illustrative list” of “typical work locations” where employees providing health care services may work, including the following:  “a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided.”  The specifically identified locations match the list in the original FFCRA regulations, while the “catch-all” is similar to the original regulations but eliminates “similar institution, Employer, or entity” as a modifier to the locations.  Of course, an employee need not work at one of these enumerated facilities to be a health care provider for FFCRA purposes, and working at one of these facilities does not necessarily mean an employee is a health care provider.

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

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

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

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

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

Easing Documentation and Notice Requirements in Certain Instances

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

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

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

New FAQs

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

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

Insights for Employers

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

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