COVID-19 – Page 15

March 18, 2020March 19, 2020

An adequate public health workforce is necessary for public health emergencies

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our GPS clock in tool for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will provide a personal, online walkthrough of our platform to help you get started. It can be fully deployed in 1-2 days.

Health care workers have a vital role in caring for patients with coronavirus. But they’re also at risk themselves.

They’re in a tough situation because an outbreak among health care professionals and those who work at health care facilities not only impacts an organization’s finances, but it can also cascade into a larger health care crisis, according to a guide prepared by law firm Seyfarth, “Coronavirus Preparation for Health Care Facilities and Workers.” While providers have obligations to their patients, they also have responsibilities to their employees to keep them safe.

These issues are true for both private and public health professionals, but the public workforce in particular has unique challenges. It has been chronically underfunded, especially since the Great Recession of 2008, said Rivka Liss-Levinson, director of research at the Center for State and Local Government Excellence.

While health care workers are doing the best they can to control and contain the coronavirus outbreak, there’s a limit to what people can do with limited funding, she said. Meanwhile, these employees are highly educated and have jobs that require specialized skills and credentialing, so health care systems facing a shortage due to an outbreak have trouble replacing them.

“To successfully tackle today’s greatest public health challenges, a workforce of sufficient size and with the appropriate skill sets is needed. This requires allocating adequate funding,” she wrote in her blog, “We Shouldn’t Wait for a Crisis like Coronavirus to Fund Public Health.”

Turnover may be a concern for their employers. The public sector workforce is mostly mission-driven, and they know they won’t be paid as much as they would in the private sector. They want to make a difference in their community, Liss-Levinson said. Still, they also want to be compensated fairly.

She cited a study from de Beaumont Foundation and Association of State and Territorial Health Officials which found that 47 percent of this workforce plan to leave their jobs in the next five years. While some of this (22 percent) is due to retirement, 25 percent of employees said they wanted to leave for new positions.

Meanwhile, available public health care plays a big role in rural areas, which may face unique challenges in that they have fewer resources and harder-to-access care compared to urban areas. It’s important for people to access care in these communities, whether it’s for a pandemic or something more common.

“We have a tendency to really put a spotlight on public health when there are emergencies like this but we need to be adequately finding public health at all times. When you are underfunded, you are then not able to deal with an emergency,” Liss-Levinsom said. “We need to be aware of the role the public health workforce plays every day in protecting us, not just when there’s something like coronavirus.”

March 18, 2020June 29, 2023

The role of businesses in addressing the COVID-19 pandemic

COVID-19, coronavirus, public health crisis

Workplace policies, benefits and culture can have a big impact on public health.

The basics of what employers can do to address the coronavirus is to allow employees to work from home and make sure they can access and afford the health care they need, said Elise Gould, senior economist at the Economic Policy Institute.

While many employers may be concerned about their bottom line and the loss of productivity, the reality is that loss will be even greater if employees come in sick, potentially with the coronavirus, Gould said. Passing this virus onto coworkers and the public is not good for the bottom line.

Some research about the flu shows that employees having more sick days is linked to reduced contagion, she said. With the coronavirus, “it’s time to do that. It’s not even a big, bold thing to think about, giving people paid sick days when they’re sick. It is a smart move,” she said.

Currently, even people with paid sick days don’t have enough days to recover from coronavirus, Gould said in her EPI blog “Amid COVID-19 outbreak, the workers who need paid sick days the most have the least.”

“The United States is unprepared for the COVID-19 pandemic given that many workers throughout the economy will have financial difficulty in following the CDC’s recommendations to stay home and seek medical care if they think they’ve become infected,” she wrote. “Millions of U.S. workers and their families don’t have access to health insurance, and only 30 percent of the lowest paid workers have the ability to earn paid sick days — workers who typically have lots of contact with the public and aren’t able to work from home.”

Many are calling for national paid sick leave, but the future of the Families First Coronavirus Response Act is still uncertain.

“We know that national paid sick time is realistic in the sense that many industrialized countries provide for it,” said said Janie Schulman, partner in global law firm Morrison & Foerster’s Employment + Labor group. However, “mandatory paid benefits in the U.S. have been and continue to be a politically divisive issue.”

Offer: COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our GPS clock in tool for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will provide a personal, online walkthrough of our platform to help you get started. It can be fully deployed in 1-2 days.

Also, in the U.S., there is always a question as to which matters are reserved to the states and which may be legislated at a federal level, she said. While the federal government has yet to enact a paid sick leave law, several states and some cities have done so in recent years.

“It remains to be seen whether the COVID-19 outbreak will create a paradigm shift at the federal level,” Schulman said.

With employees staying home, one key issue that organizations have to deal with now is employee absenteeism, said Roberta J. Witty, research vice president at Gartner, Risk and Security Management Programs. They have to understand what their mission-critical business services are and determine how to staff them if they have a high-absenteeism rate. This may be done through cross-training, moving work from one location to another or other kinds or workload balancing.

“For those business services where a face-to-face interaction is required, you might have to shut down some of those services due to best practices regarding controlling infection between people as outlined by the CDC,” Witty said. “Also, there may be a hard decision to be made – what is the minimum percentage of your volume you can support with a degraded workforce, and then shut down if you go below that level.”

Businesses, like individuals, must cooperate in our generally accepted social contract that requires each of us to do our part in trying to limit the spread of disease for the overall public good, Schulman said.

“[We have already seen businesses around the country step up and do more than they are legally required to do,” Schulman said “Many of the steps we have seen businesses take in the past few weeks are not mandated by law, but rather demonstrate the proactive efforts of businesses to limit the spread of the coronavirus (COVID-19) to protect their employees and the public.”

These steps include encouraging remote work, cancelling large public events, offering extra paid sick leave and limiting visitors coming to company premises, she said.

Many of these tough calls will undoubtedly hurt businesses’ bottom line and affect productivity, revenue, profits, and stock price and may interfere with relationships with customers and vendors, she said. In many of these cases, companies are weighing the costs of these short-term sacrifices against the potential long-term harm that would occur if they did not take these steps.

One effective best practice some companies are following is creating a pandemic team or crisis management team, said Tracy Billows, chair of law firm Seyfarth’s Chicago office Labor & Employment department. Team members — which include individuals from many departments including HR, legal, health and safety, security, operations and finance — work together to create a holistic strategy.

A pandemic team should also include the COO or CEO to give the team the leadership needed to and to ensure the committee is acting consistently with the company’s culture, policies and expectations, Billows said.

Even companies with crisis management plans in place already may have a need for a committee.

“I’ve worked with employers who have had pandemic plans and emergency response plans for years and, to be frank, they’re all updating them for this. The old rules are out the door. This is new. This is different. This is not the same thing we’ve dealt with before,” Billows said.

Companies should be responsive to any Centers for Disease Control and Prevention updates as well as local or state public health guideline updates, she said.

“It’s important that employers show that they are staying up-to-date on the latest and update their policies and protocols accordingly,” she said. “It can feel like you need a dedicated team just to do that, but those who are doing so are being successful at it.”

To learn more about the recent legislation around COVID-19 and what it means to your organization, register for our free webinar, What HR Needs to Know about Coronavirus.

March 18, 2020April 11, 2023

During COVID-19 outbreak, utilize internal communications in your company crisis plan

Internal communication is a vital part of crisis management, whether it is a pandemic like COVID-19, a natural disaster or a workplace shooting.

As the people and organizations worldwide deal with the implications of the coronavirus, it is vital for people to communicate accurate information about the virus, check what they’re retweeting and make sure not to spread disinformation. Businesses have a similar responsibility, but on top of that, their communication must be strategic. It should be part of any crisis management plan.

Employees will be getting information about the coronavirus from somewhere, and coworkers will realistically discuss the company’s response to the pandemic among one another, whether their response is appreciative or critical.

Whatever standard message a business publicly announces during a crisis, if employees have issues with how the crisis is being handled, it doesn’t matter if the media paints the company in a good light. There still may be low employee morale and high levels of frustration internally.

Despite the immediate importance of communication, many organizations have yet to create a strategy. According to a report from Gallagher’s Benefits and HR Consulting Division, 61 percent of organizations have developed a communication strategy related to COVID-19, with 82 percent of health care having a strategy compared to 49 percent of non-health care organizations.

In another survey of 300 communications senior leaders, the Institute for Public Relations found that 44 of respondents said their crisis communications plan did not specifically address an infectious disease outbreak. Ten percent of respondents did not have crisis communication plans at all.

There are some basics that employees should understand about coronavirus symptoms and the course of the illness, which should be an integral part of a communication campaign.

First, COVID-19 is not airborne. It’s passed by droplets. That means when someone who is infected coughs into their hands and touches a surface, someone else can catch it by touching that surface and then touching their face. As strange as it may seem, that’s good news. It means that if people wash their hands frequently with regular soap — especially after you may have touched surfaces that a lot of other people touch, like doorknobs, the keypad for clocking into work or shaking hands — they’re much less likely to be infected.

Second, some people have compared COVID-19 symptoms to the flu, but that’s not completely accurate. The two most common symptoms are fever and a dry cough. People with COVID-19 rarely have a sniffle. They also aren’t likely to be nauseous. What they are likely to have is bad upper respiratory problems. They tend to develop a severe cough that makes it hard for them to breathe, which is what is making COVID-19 dangerous.

Finally, it’s also true that for most younger workers, the symptoms are milder and people who have it may only think they have a cold. However, older employees or anyone with a compromised immune system are much more likely to have serious symptoms that require medical assistance. The medical assistance that is often required is intubation and the use of a ventilator.

The reason why COVID-19 is such a big deal right now is because the number of people who require medical assistance is overwhelming the medical system in the places where the number of cases has grown, like Italy. The medical system has been overwhelmed even in places that have a consistent ratio of doctors and hospital beds to people (Italy’s is better than the United States’, for example). There are only so many beds in the hospitals and only so many ventilators.

That’s why there has been a push to slow down transmission through actions like social distancing and remote working, because if it is slowed enough, it won’t overwhelm the health care system. The mission is to flatten the curve and buy time for the health care system to adequately care for those who fall ill.

If someone has been exposed, they are likely to have symptoms within five days of exposure and can also be a carrier for up to 14 days, even if they’re asymptomatic. This is why quarantine periods are generally 14 days long.

According to recent guidance from consultancy Deloitte, the most important players in your communications plan are front-line managers. Employees expect accurate, authoritative and transparent information. “Trying to conceal risk can potentially create more,” the report stated. Leaders should outline communication plans and make sure that managers know what to expect and understand and define their role.

Further, companies need to prepare plans for site disruption and reactivation. “In the event an entity has to close its doors for non-critical workers for a period, determine a communications plan about how you’ll communicate with all workers, including contractors and vendor partners,” according to the Deloitte guidance. “Have a clear playbook for how to initiate a closure and how to reroute operations and employees to other locations within your network. Moreover, finalize a checklist to determine when employees can return to work once the all clear is given.”

Employees are bound to talk about the coronavirus outbreak on social media, and there are certain steps a business can take to temper this, according to Deloitte. One solution is to provide employees an internal communications channel through which they can express their issues about what they’re seeing within the organization. It’s a smart business move to “ensure direct communication as much as possible as an alternative to social media,” the report stated.

For Workforce.com users there are features on our platform available to keep communication lines open during this difficult time. Chat with your staff, schedule according to operational changes, manage leave, clock in and out remotely, and communicate changes through custom events, among other things.

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our platform for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will gladly provide a personal, online walkthrough of our platform to help you get started.

March 16, 2020June 29, 2023

Answering the 6 most common questions about the Families First Coronavirus Response Act

In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.

1. I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?

2. I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?

3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?

4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?

5. What about self-employed people? What relief is there for us?

6. If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?

Let me try to answer each as best as I can, understanding that there are no clear answers to any of this, and these issues are difficult and quickly developing and changing.

1. Small Businesses

There is no doubt that paid family and sick leave will impose a huge burden on the smallest of employers, especially since the only financial relief in the bill, the 100% tax credit for sick leave wages paid, is not a dollar-for-dollar match and only offers deferred relief.There is one provision in the bill, however, that may offer some help in the most extreme of circumstances.

The Secretary of Labor shall have the authority to issue regulations to exempt small businesses with fewer than 50 employees from the requirements of section 102(a)(1)(F) when the imposition of such requirements would jeopardize the viability of the business as a going concern.

This means that if the Secretary of Labor takes this up, he could issue regulations that would permit the smallest of businesses (under 50 employees) to claim an exemption if paid leave “would jeopardize the viability of the business as a going concern.”

Also note that under the same provisions, the Secretary of Labor could also pass regulations “to exclude certain health care providers and emergency responders,” meaning that these vital employees might not receive any paid FMLA or paid sick leave.

Stay tuned to see if this happens once this bill passes.

Finally, late last night, the Treasury Secretary announced that employers will be able to use cash deposited with the IRS to pay sick-leave wages, and for businesses without sufficient taxes from which to draw, the Treasury would make advances available.

2. Employees of Large Employers.

One of the most curious of the decisions this bill makes is to exempt employers with 500 or more employees. Here’s the editorial board of The New York Times, taking this decision to task.

Paying sick workers to stay at home is both good policy and good politics. Why not pass a bill that required all employers to provide paid sick leave and then force Republicans to explain their objections to the public?

The bill does require some employers to provide full-time workers with up to 10 days of paid leave. But the requirement does not apply to the nation’s largest employers — companies with 500 or more workers, who together employ roughly 54 percent of all workers.

All I can say is stay tuned. This coverage choice could be altered by the Senate when they take up this bill early this week, or it could be fixed by an entirely different piece of legislation. Or it can remain as-is, making the policy decision that large employers should offer these benefits without a government mandate. As the op-ed points out, according to federal statistics approximately 86 percent of employees at big companies already receive get some kind of paid sick leave. What I’d like to hear from Congress is why this 500-employee line was drawn? Was it a policy choice, the result of big-business lobbying, or with the knowledge that other legislation is on the way to close this loophole?

3. Paid FMLA vs. Paid Sick Leave.

There is a lot of uncertainly as to how the FFCRA’s paid-leave provisions interact with each other, but here’s my best read. The paid sick leave provision provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) for COVID-19-related absences. The paid FMLA provision provides paid leave at two-thirds of an employee’s regular rate of pay for the number of hours the employee otherwise would have worked for the duration of a COVID-19-related FMLA leave, but the first 14 days of such leave can be unpaid. I’d expect most to substitute and run concurrently the paid sick leave during the initial unpaid portion of FMLA. Thus, the first 10 days of a COVID-19 leave will be paid at 100 percent of the employee’s regular rate as paid sick leave, and the remaining 10 weeks will be paid a two-thirds of an employee’s regular rate as paid FMLA. When an employer drafts or revises FMLA and paid sick leave policies, it should account for this overlap. Finally, please don’t forget about paid sick leave laws in your state or locality, which also might have something to add on this issue.

4. Non-profits.

I actually have some good news to share here. The tax credit offered by the FFCRA is against social security taxes, which, unless I misunderstand (and I’m not a tax lawyer), non-profits still pay on their employees. So, the tax credit provision will still off non-profit employers some future relief.

5. The self-employed.

This is, perhaps, the biggest issue. While the number varies wildly, there are anywhere between 50 million and 75 million gig workers. That’s a whole lot of self-employed people that this bill does not touch. What are they supposed to do? How are they supposed to earn if the economy shuts down? I wish I had the answer, but I have no idea. It’s a huge gap and huge problem, and absent specific government relief, these people are really going to be struggling, probably for a long time. That said, the tax-relief provisions also seem to apply to the self-employed. So that’s something.

6. Closures.

If a company is forced to shut its doors because of COVID-19, the Worker Adjustment and Retraining Notification (WARN) Act might apply if your business is large enough. It applies to employers with 100 or more employees. It mandates 60 days’ advance written notice (or if no notice is given or can be given, 60 days’ pay in lieu of such notice) before a “plant closing” or “mass layoff.” Please note, though, that a mass layoff does not occur, and therefore WARN does not apply, if the layoff is expected to be for less than six months. Because most expect this crisis to subside in less than six months, WARN likely will not apply to coronavirus-related layoffs. It will still apply to a plant closure if your business is large enough to meet the 100-employee threshold.

Also, keep in mind that some states have their own mini-WARN laws (California, Illinois, Maryland, New Jersey, New York, Tennessee, and Wisconsin, for example) that provide greater coverage. Ohio does not.

Finally, state unemployment compensation is available to employees who suffer coronavirus-related job losses. Ohio, for example, Governor DeWine is issuing an executive order so that unemployment insurance immediately covers workers who are displaced, even temporarily, by coronavirus, which will include a waiver any waiting periods to qualify and of the requirement that an individual seek work to collect benefits.

These issues are quickly evolving. I’m doing my best to stay on top of them and get everyone information as quickly as I can. Stay tuned. It’s going to a difficult time for everyone between now and when this crisis ends.

If your business needs FMLA or sick leave policies drafted, reviewed, or revised for anticipated FFCRA compliance, please let me know.

Also read: COVID-19 the role of businesses in a public health crisis?

March 9, 2020June 29, 2023

FMLA obligations during the coronavirus outbreak

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our platform for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will gladly provide a personal, online walkthrough of our platform to help you get started.

Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.

The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).

Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”

Brede, a full-time member of Apple’s Genius Team at one of its Apple Stores, claimed that Apple fired him because he sought FMLA leave as in loco parentis to care for his niece and nephew because of his sister’s serious health condition. According to the court, Brede’s leave was not FMLA-covered.

The flaw in Brede’s FMLA claims on both theories is that … his requested leave to care for those children was not FMLA-qualifying. Brede does not allege that any of the minor children (who would be considered his daughter and sons under in loco parentis) are experiencing a “serious health condition” that requires his care. It is Brede’s sister that has the serious health condition. Even if Brede’s care of the children could be seen, by extension, as care for his sick sister (and Brede cites no legal authority for that proposition), the FMLA does not entitle an employee to take leave to care for a sibling with a serious health condition.

The Brede court got this issue 100% legally correct. Because the FMLA does not provide leave to care for siblings, it also does not provide leave to care for an ill sibling’s children.

In this time international medical crisis, however, let’s not lose sight of the fact that the FMLA is a floor, not a ceiling. Just because the law doesn’t require you to grant a leave of absence to an employee to care for the children of an ill sibling doesn’t mean that you can’t choose to offer such leave. As COVID-19 cases spread, employers are going to have to be nimble and flexible in their responses. The hypothetical spun from the Brede case is but one example of this necessary flexibility.

Also read: Is coronavirus the thing that will finally make paid sick leave a national reality?

Also read: COVID-19 and the role of businesses in a public health crisis

March 4, 2020June 29, 2023

What employers need to know about coronavirus and the workplace

The United States Center for Disease Control and Prevention has been closely monitoring the spread of coronavirus, a respiratory illness first detected in Wuhan, China. Now that the coronavirus has taken a deadly turn in the United States, many employers are looking for guidance as to how they may protect employees while continuing to adhere to their legal obligations in the workplace.

Here are some suggestions that employers may take to protect themselves and their employees.

Allow employees to work from home as a precaution

In January, the CDC confirmed that the virus may be spread through person-to-person contact. In light of this information and the understanding that the incubation period is between two and 14 days, employers should consider allowing employees concerned about possible exposure to work from home, to the extent practicable.

If remote work is not possible, employers could alternatively consider providing paid leave during that incubation period.

Consider alternatives to business trips

At the time of this publication, the CDC has issued a level 3 health travel notice — recommending that individuals avoid all unnecessary travel to China, Iran, South Korea and Italy. For those employers with employees traveling to any of these areas for business purposes, consider whether postponing or moving the location of the trip is a suitable alternative. Other options may include telephone and/or video conferencing.

Similarly, if an employee expresses concern about business travel to other affected areas, employers should consider reasonable alternatives, mindful of OSHA’s requirement that employers provide “a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to . . . employees.”

Assess risk on a case-by-case basis

With regard to those employees showing what could be early-stage coronavirus symptoms — which are similar to that of a cold — there is a risk of overreaction and business disruption if employers take a one-size-fits-all approach, requiring all employees with those types of symptoms to stay home.

Instead, employers should assess risk on a case-by-case basis and encourage employees to seek and follow professional medical advice in a manner consistent with the employer’s usual sick leave policies.

Similarly, employers should broach the topic of employees’ symptoms carefully as state and federal anti-discrimination laws limit medical inquiries by employers if doing so may reveal an employee’s disability. In light of these limitations, we recommend employers do what they can to ensure a healthy, safe working environment by encouraging any employees showing symptoms of the coronavirus to follow public health guidance and professional medical advice and by reminding employees about applicable human resources policies and procedures.

Also read: Can an employer require an employee with a serious health condition to take FMLA leave?

Take care to avoid discriminatory behavior or actions

An employer must be mindful of all its legal obligations, balancing the requirement to ensure a healthy and safe working environment with its concurrent obligation to maintain a working environment that is free from unlawful discrimination. For example, an employer should seek to avoid any stereotyping behavior by employees, such as inquiries related to the coronavirus that can be linked to an employee’s national origin. Such inquiries could result in claims of unlawful discrimination.

Also read: COVID-19 and the role of businesses in a public health crisis

As another example, if an employee discloses their diagnosis with the virus, employers should work with them to determine what steps to take to prevent the spread to other employees in the workplace, as well as to enable the employee to recover and return to work. Options may include a remote work arrangement, paid or unpaid sick leave or another form of leave of absence.

Importantly, employers should ensure supervisors are trained to avoid overreaction and are informed about the applicable laws that restrict inquiries into the health status of employees. They should also be trained on the importance of adhering to company anti-discrimination policies (including avoiding stereotyping based on race, ethnicity, and national origin).

Communicate regularly

By regularly communicating with employees as to current policies and procedures for managing the virus, employers will be best equipped to balance their legal obligations. If, in accordance with CDC or local health official guidance, an employer decides that any employee showing symptoms of the virus will be encouraged to stay home until they are fever free, this should be communicated to all employees uniformly.

If an employee approaches management with specific questions, the employer should proceed with caution and avoid asking questions that may lead to the disclosure of an employee’s disability. Instead, the employer should focus on the employee’s job duties and what adjustments, if any, can be made to enable the employee to perform those duties.

Balance safety and legal compliance

Employers cannot prioritize OSHA health and safety requirements over state and federal privacy and anti-discrimination laws. The threat of the virus does not excuse the employer from its other legal obligations, and claims are bound to arise if an employer lets one of its responsibilities slip.

Please note that the above information is based upon what is presently known about the coronavirus. This is an ongoing issue and employers should remain informed of further updates from the CDC and other local public health officials.

March 3, 2020June 29, 2023

Can an employer require an employee with a serious health condition to take FMLA leave?

Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.

The answer is a qualified “yes.”

Conventional FMLA wisdom had always been that if an eligible employee gave notice of a need for an FMLA-qualifying leave, the employer was required to designate the time off as FMLA. That wisdom changed, however, with the 9th Circuit’s 2014 decision in Escriba v. Foster Poultry Farms. Escriba held that the FMLA permits an employee to decline to take FMLA leave, even when the need is for an FMLA-qualified reason. No other circuit has followed Escriba (although the Northern District of Ohio did in 2015). Last year the Department of Labor published an opinion letter [pdf] that expressly rejected Escriba, restating the historically prevailing view that an employer cannot delay designating qualifying leave as FMLA leave, even if an employee asks it to do so.

Practically speaking, the denial of an FMLA-qualifying leave as FMLA-designed leave might be a no-harm/no-foul, as long as the employee does not lose any other rights in the process. If the employer permits the employee to take the leave as unpaid, restores the employee to the same or substantially similar job at the end of the unpaid leave, otherwise treats the employee as if they were on an FMLA leave, and does not retaliate against the employee, a refusal to designate qualifying leave as FMLA leave should not cause any legal issues. It’s no different than having a leave policy more generous than what the FMLA requires … it just grants extra leave on the front end instead of the back end.

Also read: COVID-19 and the role of businesses in a public health crisis