FFRCA – Workforce

March 4, 2021

Please pay your employees for time off related to the COVID-19 vaccine

Earlier this week, the House passed an extension of the FFCRA as part of its $1.9 trillion COVID-19 stimulus bill. (I’ll cover its details in a future post, but if you’re curious now, head over to Jeff Nowak’s FMLA Insights.)

One of the new measures in this proposed extension is the inclusion of leave taken by an employee to obtain a COVID-19 vaccine or recover from any injury, disability, illness or condition related to the vaccine.

Bravo! But here’s the thing. Until this passes and becomes law, and even if it doesn’t become law, employers should be paying employees for time off related to the COVID vaccine. At least for now, vaccine appointments are scarce and employees who are eligible to get vaccinated must take appointments when they can get them. Many will need to get their vaccines during the workday. Moreover, post-vaccination, some employees will have a reaction serious enough to keep them house-bound for a day or so.

The way through the end of this pandemic and returning our lives to normal is by getting enough shots in arms as quickly as possible. As employers, want to encourage our employees to get vaccinated.

We don’t want employees to feel like they have to choose between obtaining a vaccine and obtaining a paycheck. Some will choose poorly. By paying employees for time off from work related to COVID-19 vaccinations, we are making the decision that these vaccines are a priority, and that we are not standing in our employees’ way from obtaining them as soon as possible.

December 2, 2020December 2, 2020

Coronavirus update: Congress must extend the FFCRA

Capitol Building, joint session of Congress

The Families First Coronavirus Response Act, the federal law that provides paid sick and family leave to employees for COVID-19-related absences, ends in 29 days. By its terms, the law sunsets on Dec. 31.

On Dec. 1, news broke of a new coronavirus relief bill that Senate Majority Leader Mitch McConnell will put forward. It will include important measures such as the extension of unemployment insurance expansions for another month, another round of Paycheck Protection Program (PPP) small business assistance, and additional funding for the USPS, schools, testing, and vaccine distribution.

What doesn’t it include? Any extension of the FFCRA.

COVID-19 isn’t going to magically disappear on Dec. 31. If anything, we’ll be in the midst of the virus’s current surge and the situation will be worse and more dire come January 2021 than it is now. You will have more employees needing time away from work because of their own illnesses, the illnesses of family members, and the closure of their children’s schools. Yet, they will lack any federal protections for this time off.

Congress needs to extend the FFCRA now. Otherwise, millions of employees will be left without leave and without job protection as they and their families battle this virus.

Employers, you need to assume that the FFCRA is going away to start 2021 and spend some time over the next few weeks figuring out your own plan for your employees.

Will you grant your own paid sick and family leave in lieu of the federal benefit?
Will you merely rely on your existing PTO/vacation/sick leave benefits?
Will you grant unpaid leaves of absence but not offer any additional paid leave to employees?
Will you do nothing and force these employees out of your business?

These are difficult choices to make during difficult economic times. But you need to make them and you need a plan, as it appears that Congress will not provide one for you for 2021.

November 17, 2020

Retaliation under the FFCRA is as illegal as is retaliation under any other employment statute

MaryJo Delaney is suing her former employer after it demoted her from her management position following her return from a COVID-related layoff, for which she had volunteered so that she could stay at home with her 9-year-old son whose school was closed.

When her governor locked down the state early in the pandemic, her employer remained open as an essential business. It offered a voluntary layoff to anyone who wished to avoid the risk of contracting the virus. Delaney chose that option to care for her son.

She returned to work in May when the company recalled all laid-off employees. She requested to work limited hours, again because of her need to care for her son, but was told that reduced hours would result in a demotion. Instead, her employer permitted her to shift her hours to account for her child-care needs.

According to her complaint, however, her employer started to “overly scrutinize and nitpick [her] work performance and subject[ed] [her] to unfair criticism” upon her return to work. That criticism led to her demotion, which led to her resignation, which led to her lawsuit claiming violations of the Families First Coronavirus Response Act.

If your business has fewer than 500 employees, your employees have a right under the FFCRA to take leave to care for their child(ren) whose school is closed or whose childcare provider is otherwise unavailable because of COVID-19. If you interfere with that right or retaliate against an employee who takes such leave, you are violating the FFCRA.

That said, an employer isn’t powerless in this situation.

You can offer remote work for employees who can perform their jobs away from the workplace. If you make remote work available, an employee does not qualify for FFCRA leave.
You can offer a flexible work schedule to allow an employee to flex his or her hours around their childcare-related needs, which would also obviate an employee’s right to FFCRA leave.
If you have fewer than 50 employees, you might qualify for the small-business exception to the FFCRA’s childcare-leave provisions and may not have to offer such leave at all.

What you cannot do, however, is outright deny leave if an employee qualifies or retaliate against an employee who takes such leave. That’s illegal and will get you sued. Take heed, because as COVID number skyrocket, if this isn’t an issue with which you’ve had to deal, it’s more than likely that you will and soon.

September 14, 2020September 14, 2020

DOL issues revised FFCRA regulations; what’s changed and what hasn’t?

employment law, labor law, overtime records

In early August, a New York federal district court judge issued an order invaliding several key provisions in the DOL’s FFCRA regulations. Last Friday evening, the DOL responded with revised regulations that left most of its prior regulations intact, while also make a few common-sense amendments.Here’s what the DOL did, and did not, change in response to the court’s order, and why.

1. The DOL reaffirmed that an employee may only take paid sick leave and expanded family and medical leave under the FFCRA if the employee has work from which to take leave, and if there is no work available, no leave may be taken.According to the DOL, this interpretation is entirely consistent with the statute’s requirement that an employer must provide its employees FFCRA leave to the extent that an employee is unable to work (or telework) due to a need for leave “because” of or “due to” a qualifying reason for leave. As summarized by the DOL, “[I]f 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.” Thus, “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.” This interpretation avoids the perverse result of an employee being on furlough and not receiving a paycheck, but still qualifying for paid leave.

2. The DOL reaffirmed that where intermittent FFCRA leave is permitted (i.e., for leave taken to care for a son or daughter because their school or place of care is closed, or their child care provider is unavailable, because of COVID-19), an employee may only take such leave intermittently upon the approval of his or her employer.The DOL left these regulations untouched for two reasons. First, limiting intermittent leave to child-care-related absences furthers the policy of limiting employees who have potentially been exposed to COVID-19 from entering the workplace. Secondly, requiring employer approval is consistent with similar leave available under the FMLA, which should “avoid unduly disrupting the employer’s operation.

3. The DOL revised its overly broad definition of “health care provider” for purposes of the statutory exemption.This change is the most significant one in the revised regulations. The original regulations permitted an employer to exempt anyone who worked in healthcare or related to healthcare, whether or not they were an actual health care provider. Thus, maintenance workers, or workers for medical device or pharmaceutical companies, could be deemed “exempt” from the FFCRA. The DOL has now tightened the definition to mirror the definition of “health care provider” in the FMLA, and now covers only physicians and others who make medical diagnoses, and those capable of and employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

4. The DOL corrected an inconsistency about when an employee may be required to give notice to his or her employer of the need for expanded family and medical leave.The DOL amended the FFCRA’s regulations so that they are consistent with the FMLA’s requirements for advance notice. Now, notice of the need for expanded family and medical leave is required “as soon as practicable.” (The regulations previously prohibited advance notice for any leave under the FFCRA.)

5. The DOL clarified that the information the statute requires an employee to provide his or her employer to support a request for FFCRA leave must be given as soon as practicable.The regulations now provide that an employee is required to give the required documentation for FFCRA leave “as soon as practicable,” and not prior to taking the FFCRA leave.

These are common sense, business-friendly changes to the FFCRA’s regulations. Moreover, given that the Act sunsets on Dec. 31, 2020, it’s unlikely (but not impossible) that New York or another state will take another crack at striking down the revised regulations before the Act’s expiration.

June 3, 2020June 29, 2023

Do Lake of the Ozarks employees sent home from work qualify for paid sick leave under FFCRA?

Last week I discussed how to handle employees who are not social distancing outside of work.

My thoughts were spurred by videos of employees partying over the Memorial Day weekend at Lake of the Ozarks and elsewhere around the country.

I said the following:

I would also place any employee who violated social distancing rules outside of work (whether the information is volunteered on a self-assessment or discovered through a viral video) on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment.

It looks like I might have a reader in Lincoln County, Missouri.

According to KSDK, employers are mandating unpaid leaves of absence and quarantines for employees who spent their holiday weekend amid the throngs at Lake of the Ozarks, The story also quotes an attorney who says that placing an employee on an unpaid leave of absence, under those circumstances, might violate the FFCRA’s requirements for paid sick leave for an employee “advised by a health care provider to self-quarantine due to concerns related to COVID-19.”

I completely disagree, and the Department of Labor has my back.

Take a look at Question 77 to the DOL’s FFCRA Questions and Answers:

May I take paid sick leave or expanded family and medical leave under the FFCRA if I am on an employer-approved leave of absence?

It depends on whether your leave of absence is voluntary or mandatory. If your leave of absence is voluntary, you may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents you from being able to work (or telework). However, you may not take paid sick leave or expanded family and medical leave under the FFCRA if your leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework).

In other words, if an employee’s leave of absence is the employer’s choice, as is the case in the Lake of Ozarks example, then the employee does not qualify for FFCRA paid sick leave, because it’s not a COVID-19 medical recommendation or quarantine that’s preventing the employee from working but the leave of absence.

It’s no different from a furlough, for which employees also do not qualify for FFCRA paid leave. As long as you place an employee on leave before they tell you they’ve been advised by a health care provider to self-quarantine because of COVID-19 concerns, you shouldn’t have to worry about paying the employee for that leave under the FFCRA.

May 18, 2020June 29, 2023

House proposes significant expansions to paid leave under Families First Coronavirus Response Act

The House of Representatives on May 15 passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R.6800. Among other things, it proposes significant clarifications and expansions to the Emergency Family And Medical Leave and Emergency Paid Sick Leave provisions of the Families First Coronavirus Response Act.

What are these proposed changes?

Emergency Family And Medical Leave

Expands emergency FMLA coverage to all employers, not just those with less than 500 employees.
Expands the definition of “parent” to include foster parents, adoptive parents, stepparents, parents-in-law, a parent of a domestic partner, and someone who stood in loco parentis to an employee when the employee was a child.
Provides emergency FMLA to an employee who is —
- self-isolating because of the employee’s own COVID-19 diagnosis;
- obtaining a medical diagnosis or care if the employee is experiencing the symptoms of COVID–19;
- complying with a recommendation or order by a public official with jurisdiction or a health care provider to self-isolate on the basis that the physical presence of the employee on the job would jeopardize the employee’s health, the health of other employees, or the health of an individual in the household of the employee because of the possible exposure of the employee to COVID–19 or because of the exhibiting of symptoms of COVID–19 by the employee;
- caring for or assisting a family member (also defined in the amendments) because the family member is self-isolating because of a COVID–19 diagnosis, because the family member is experiencing symptoms of COVID–19 and needs to obtain medical diagnosis or care, or because a public official or health care provider makes a recommendation or order that the presence of the family member in the community would jeopardize the health of other individuals in the community because of the possible exposure of such family member to COVID–19 or exhibiting of symptoms of COVID–19; and
- caring for a family member who is incapable of self-care because of a mental or physical disability or is a senior citizen, if the place of care for such family member is closed or the direct care provider is unavailable due to COVID–19.
Permits an employee to elect, but an employer cannot require, the substitution of paid time off for emergency FMLA.
Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
Prohibits an employer from requiring certification by an employee in support of an emergency FMLA leave to not earlier than five weeks after the date on which the employee takes such leave
Extends the sunset date of emergency FMLA from 12/31/2020 until 12/31/2021.

Emergency Paid Sick Leave

Clarifies that paid sick leave under the FFCRA must be offered in addition to any paid leave offered by an employer, and prohibits an employer from changing its policies to avoid providing any additional paid leave.
Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
Prohibits an employer from requiring certification by an employee for the need for paid sick leave for leaves less than three consecutive days of paid sick time, and further prohibits an employer from requiring such certification earlier than seven workdays after an employee returns to work.
Provides for a new allotment of 80 hours of paid sick leave if an employee changes employers.
Requires restoration of an employee to the same or equivalent position at the end of a period of paid sick leave.
Extends the sunset date of paid sick leave from 12/31/2020 until 12/31/2021.

Sen. Mitch McConnell has already said that this bill is DOA in the Senate in its current form but it’s unclear if this statement specifically referenced the FFCRA amendments. Stay tuned to see if any of these proposed amendments gain any traction in the Senate. I’ll keep everyone updated as this bill progresses.