Tag: FMLA

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We are in the midst of a public mental health crisis; how employers can help

employers mental health; Millennials and mental health

Consider these statistics, courtesy of the National Institute of Mental Health, which recently examined mental health issues one year into the COVID-19 pandemic:

  • 31 percent of people report symptoms of anxiety or depression​.
  • 13 percent report having started or increased substance use​.
  • 26 percent report stress-related symptoms​.
  • 11 percent report having serious thoughts of suicide in the past 30 days​.
These grim numbers tell me that COVID-19 has created a national mental health crisis. At least some of your employees are struggling. Your challenge is what to do about it.
Here are four suggestions.
1. Check the benefits available to your employees. Do you have an employee assistance plan and are its mental health and counseling services are up to date? Are your health insurance plan’s mental health benefits easy to access and affordable? Do your employees know about state-offered resources, such as Ohio’s CareLine, a 24/7 community administered emotional support call service (800-720-9616)?
2. Revisit paid time off policies and consider providing employees the time they need to take care of themselves and their families. And understand that everyone’s situation at home is different. Some only have themselves to worry about, while others have families, older parents, etc. None of this is ideal, but for some, it’s less ideal than for others, depending on how much non-work responsibilities are on one’s plate.
3. Consider holding town halls or all-employee meetings that focus on mental health awareness. If senior leadership encourages education and communication around mental health issues, your employees will be more likely to access care if and when they need it. Leadership always starts from the top, and it’s vital that leadership leads on this issue.
4. Small gestures of kindness can go a long way. An extra day paid day off, a gift certificate for takeout meals or grocery deliveries or a surprise delivery of a mid-day snack can help employees feel appreciated and connected instead of overwhelmed and stressed.
Also, do not forget about or ignore your ADA obligations. The statute covers mental impairments no differently than physical impairments. If an employee is suffering from a mental illness you have an affirmative obligation to reasonably accommodate that employee, which might involve, for example, unpaid time off for the employee to obtain needed treatment.
Finally, do not ignore these issues or your employees who are living with them. Mental health illnesses are no different than other illnesses from which we suffer.
Treating them differently only increases the stigma that surrounds them and pushes individuals deeper into their illnesses and further away from the treatment they need.

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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.

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Coronavirus Update: The FFCRA implications of schools reopening

onboarding

With schools set to reopen over the next four to six weeks, your employees will be asking for time off from work if their children will be distancing learning for any part of the upcoming school year. The FFCRA provides for up to 80 hours of paid sick leave and 12 weeks of expanded FMLA Leave (the latter 10 of which are paid) for employees who are caring for their child(ren) whose school has been closed because of COVID-19 precautions.

Also read: How do you reopen schools without teachers?

The question of whether employees are entitled to take leave under the FFCRA for children who are distance learning this school year will depend on why they are distancing learning this year.
  1. If a school is open for in-person learning and a child is distance learning by choice through an online option the school offers, the child’s parent is not entitled to FFCRA leave. In this case, the school is not closed; its physical location is open and the parent is choosing a remote learning option. Therefore, the employee does not have a qualifying reason for child care leave under the FFCRA. Note, however, that certain parents in this scenario still might qualify for FFCRA leave if the child is distance learning upon the advice of a health care provider to self-quarantine because of concerns related to COVID-19.
  2. If a school is requiring full-time online instruction or distance learning, the employee will qualify for child care leave under the FFCRA, provided that the employee certifies to the employer that no other suitable person will be caring for the child(ren) during the period for which the employee takes FFCRA leave. According to the DOL’s FFCRA FAQ’s, “If the physical location where your child received instruction or care is now closed, the school or place of care is ‘closed’ for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as ‘distance learning,’ your child is still expected or required to complete assignments.”
  3. If a school provides a mix of in-person and distance learning (e.g., a student attends class in-person in the morning and online from home in the afternoon, or in-person two days per week and remotely three days per week), an employee could take intermittent FFCRA leave, but only with the agreement of the employer. Under the FFCRA, intermittent leave is not a right and is only available if the employer permits it. Note, however, that the DOL “encourages employers and employees to collaborate to achieve flexibility.”
These issues will absolutely arise once children return to school. Best to figure out now how you are going to handle, because your employees will be requesting FFCRA leave for their children’s distance learning during the upcoming school year.
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Ease compliance concerns with workforce management software

compliance; workforce management software

Ask an HR pro how to reduce compliance risk and you’re likely to get one of two responses: a long, silent stare from beneath a furrowed brow or a finger pointing directly to a floor-to-ceiling shelf of thick binders and the two-word utterance of, “Start there.”

In other words, addressing how to reduce compliance risk is complicated. It can’t be digested over a bagel and coffee or assimilated during a five-minute confab in the conference room.

Many workplace laws, regulations and guidance governing compliance risk date back to the early 20th century. Sorting through federal, state and local workplace regulations is a skill that develops over a career through a variety of sources. A key tool among those sources is workforce management solutions designed to navigate and track the daunting web of regulatory compliance issues that employers face on a daily basis.

Configured for national, state and county labor laws, Workforce.com’s workforce management software integrates with existing human capital management and payroll systems to help reduce compliance risk through seamless workforce automation. To remain compliant and stay protected from unnecessary and costly litigation, there are several issues that employers should be aware of.

Employee classifications

Accurately classifying workers continually draws the attention of state and federal agencies that are laser-focused on enforcement. The risks of worker misclassification can be costly and subject companies to fines and back taxes that can total as much as 100 percent of the employment tax due.

When some employees work more than 40 hours per week, labor laws state that based on that worker’s classification employers are responsible for paying overtime.

Workforce management software helps employers determine who is eligible for overtime and track employees’ hours, as the federal Fair Labor Standards Act divides workers into exempt and non-exempt status. 

  • Exempt workers: Typically receive a salary and employers are not obligated to pay exempt workers overtime.
  • Non-exempt workers: Typically receive hourly pay and are eligible for overtime if they work past 40 hours in a week.

Employee leave

Sorting through the specific types of paid leave that are required by law and those provided voluntarily by employers can be confusing. The Family and Medical Leave Act regulates reasonable amounts of unpaid, job-protected leave such as the birth of a child or to care for a sick family member.

The FMLA and the Fair Labor Standards Act, however, does not regulate sick pay, vacations and paid time off. That time away is voluntarily provided by the employer yet still must be tracked.

Employee safety

You know those safety kits scattered through the office? Virtually all employers must follow the Occupational Safety and Health Administration’s regulations preventing and responding to emergencies in the workplace. Employers must have a first-aid kit on site, and they also must let employees know about hazardous materials in the workplace, although Phil from accounting’s syrup-thick coffee is exempt. Though it probably shouldn’t be.

compliance; workforce management software

Employee pay

Payroll is one of the most regulated functions in an organization that must meet federal, state and local requirements, according to the American Payroll Association.

Government agencies require:

  • Tax withholding and reporting.
  • Timely pay of employees to meet wage and hour law requirements.
  • Withholding child support and garnishments from wages.
  • Ensuring new employees are eligible to work in the U.S.

Wage and hour settlements continue to be a costly compliance issue for businesses. Investing now in workforce management solutions beats spending more money later should a lawsuit arise. Technology can help HR professionals and executives solve the vexing problem of how to reduce compliance risk.

With increased government scrutiny and potential for fines and penalties, it is more important than ever to ensure workforce compliance. Workforce.com tracks compliance and regulatory obligations, ensures accurate pay and maintains a detailed audit trail.

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Labor compliance software sorts through complex legal issues

thanksgiving, soup

Labor compliance software is an innovative way to manage the overwhelming alphabet soup of laws, regulations and agencies that govern the workplace.

Labor compliance software; alphabet soupHR practitioners must recognize the regulatory distinctions of the FMLA and FLSA and navigate the nuances between the ADA and ADAAA. What are the latest regulations surrounding the ACA? Can a misstep with COBRA come back to bite them? And SOX … is that a professional baseball team or a law protecting corporate whistleblowers?

If assessing guidance from agencies including OSHA, DOL and EEOC wasn’t enough to cope with, labor compliance software is a must-have now as the coronavirus invades organizational policies. HR leaders and corporate counsel must quickly familiarize themselves and understand the implications of implementing workplace laws surrounding a new bowl of alphabet soup — PPP, FFCRA and the CARES Act.

 The value of labor compliance software

Maintaining corporate compliance with government regulations isn’t easy. Besides knowing what agencies actually do and how regulations affect employers, labor laws are dense, complex and confusing. A single unintentional compliance misstep by an organization can lead to a costly and time-consuming lawsuit with the potential to disrupt or even bankrupt a small, growing organization.

Compliance solutions allow organizations to avoid a trip to court and more easily comprehend constantly changing federal, state and local legislation. Employers can disseminate policies to employees, provide guidelines for regulatory enforcement and manage confidential documents all while saving money by easing time-consuming, onerous reporting rules.

Workforce management systems typically assist with traditional compliance issues while a specialized compliance solution takes employers beyond the basics and provides expert guidance on critical regulations. It can be like having a team of legal experts at your fingertips with minimal expense.

Labor compliance software also allows businesses to communicate company and legislative policies to their employees.

Key areas for compliance software

Regulatory software helps an HR department remain in compliance across all organizational departments. According to peer-to-peer software review site G2, there are business functions and the germane laws that can be undertaken by labor compliance software:

Benefits — Affordable Care Act (ACA); Consolidated Omnibus Budget Reconciliation Act (COBRA); Health Insurance Portability and Accountability Act (HIPAA); Genetic Information Nondiscrimination Act (GINA); Fair Labor Standards Act (FLSA); Family and Medical Leave Act (FMLA).

COVID-19-related policies — Coronavirus Aid, Relief, and Economic Security Act (CARES Act); Families First Coronavirus Response Act (FFCRA) and Payment Protection Program (PPP).

Labor and employment relations — Labor union updates (AFL-CIO, AFGE, SEIU, etc.); Department of Labor (DOL); Equal Employment Opportunity Commission (EEOC); National Labor Relations Board (NLRB); Office of Federal Contract Compliance Programs (OFCCP).

Payroll — Fair Labor Standards Act (FLSA); Federal Insurance Contributions Act (FICA); Federal Unemployment Tax Act (FUTA); Sarbanes-Oxley Act (SOX).

Risk — Employee safety is a top priority for all organizations. Compliance software can manage and track guidance and enforcement by the Occupational Safety and Health Administration (OSHA).

Companies needing compliance software

No organization is immune from U.S., state and local labor laws. True, regulations often vary depending on factors including employee count. A four-person mom-and-pop shop does not face the same labor compliance regulations as a multinational company.

Yet it is crucial that company policies remain up to date and comply with changes in legislation. Despite the expense a lawsuit can present, many smaller organizations are hesitant to call on legal resources simply based on costs. Those concerns can be streamlined by compliance software.

Small companies have difficulty keeping up with changes in compliance because they lack the manpower, and HR departments are already stretched thin or responsibilities are divided among employees as collateral duty. There is no point person to track and update compliance regulations.

Compliance is particularly crucial to navigating the maze of workplace issues. Municipalities and some states have instituted fair workweek policies in the past two years with more on the horizon.

In the wake of the #MeToo movement, mandatory sexual harassment prevention training is compulsory in six states. Compliance training, employee handbooks and more can be structured and simplified with a compliance solution.

Small and midsize organizations in particular have difficulty keeping up with HR compliance regulations as new legislation is continually introduced. When the HR team is small (or even just one person), their bandwidth quickly becomes strained.

Sorting through the alphabet soup of labor regulations can be an eye-glazing exercise for employers. Labor compliance software helps them to spell out attractive cost-savings, easy-to-use solutions and avoid unintentional noncompliance.

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I was (mostly) correct on the intersection between employer-provided paid leave and leave under the FFCRA

essential workers; workers' compensation, mask

Last week I took a stab at making sense of the messy and unclear rules surrounding the substitution of employer-provided leave (which, for the sake of simplicity, I’ll refer to as (“PTO”) for paid sick leave (“EPSL”) and expanded Family and Medical Leave (“EFMLA”) under the Families First Coronavirus Response Act.

I was (mostly) correct.

Also read: How to calculate PTO versus traditional sick leave and vacation policies

On April 21, the Department of Labor published its 5th set of FAQs discussing the FFCRA. Question 86 squarely addresses and clarifies the intersection between employer-provided paid leave and leave under the FFCRA.

1. An employer may not require that PTO run concurrently with—that is, cover the same hours as—EPSL.
2a. An employer may require that PTO run concurrently with the paid weeks of EFMLA. PTO that runs concurrently with EFMLA will enable the employee to receive 100 percent of his or her daily pay plus the EMFLA benefit (two-thirds of her or her regular rate of pay, capped at $200 per day and $10,000 in total). Note, however, that the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act, not for any concurrent PTO applied. Once an employee exhausts all available PTO, EFMLA is continued to be paid out of the statutory two-thirds rate.
2b. Alternatively, an employer and employee may agree to top off the two-thirds EFMLA pay to an amount equal to 100 percent of the employee’s regular pay. Again, the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act.
3. An employee may elect—but an employer may not require the employee—to take EPSL or PTO (but not both) during the first two weeks of unpaid EFMLA.

Crystal clear, right?

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Making sense of substituting employer-provided leave for EPSL and EFMLA under the FFCRA

employment law, labor law, overtime records

One of the more confounding sets of rules under the Families First Coronavirus Response Act is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave — the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”) — mandated by the Families First Coronavirus Response Act.

I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO.

Also read: The DOL’s Families First Coronavirus Response Act regulations contain some big changes

The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.

So let’s try to sort it all out.

1. An employer can never require an employee to substitute PTO for EPSL. The employee can elect that substitution, but it can never be forced by the employer.

2. If an employee is taking leave to care for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, the employee qualifies for both EPSL and EFMLA. It is the employee’s sole choice whether to use EPSL during the initial two unpaid weeks of EFMLA (for which both types of leave will run concurrently), or save the EPSL for later use for another qualifying reason (or, I suppose, tack it on after the expiration of the FMLA leave). An employer cannot force an employee to use EPSL during those initial two unpaid weeks of EFMLA.

3. Here’s where it gets tricky. When can an employer require an employee to use PTO during EFMLA? Section 826.23(c) of the regulations is the key provision.

Section 2612(d)(2)(A) of the FMLA shall be applied, provided however, that the Eligible Employee may elect, and the Employer may require the Eligible Employee, to use only leave that would be available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer’s existing policies, such as personal leave or paid time off. Any leave that an Eligible Employee elects to use or that an Employer requires the Eligible Employee to use would run concurrently with Expanded Family and Medical Leave taken under this section.

(Section 2612(d)(2)(A) of the FMLA permits an employer to require the substitution of PTO for FMLA leave.)

Also read: Coronavirus update: The mechanics of the tax credit for paid family and sick leave under FFCRA

What does this all mean? It means that an employer can require an employee to use available PTO during the unpaid portion of an EFMLA school closure of loss-of-child care coronavirus-related leave. If an employer so requires, the PTO runs concurrently with the EFMLA allotment.

4. An employer and employee can agree to “top-off” EPSL or EFMLA (that is, true up the employee’s pay through the substitution of PTO so that the employee earns his or her full pay). But the employer cannot require it.

All clear, correct? Or clear as mud?

Disagree with my interpretation? Drop a comment below and let’s try to figure it out together.

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FMLA obligations during the coronavirus outbreak

COVID-19, coronavirus, public health crisis

Jon Hymam, The Practical Employer employment law blog

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.
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Not every mistake amounts to actionable employment discrimination

employment law, labor law, overtime records

Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

The Practical Employer, employment law blogRobyn Smith worked as a community manager for apartment complexes. As part of her compensation, she lived rent-free on site.

Several years into her employment, Smith developed pseudotumor cerebri — a condition caused by spinal fluid pressure on the brain — the symptoms of which include migraines, blurred vision, vertigo, and short-term memory loss. She took several leaves of absence under the FMLA, all without incident.

Thereafter, a co-worker complained to management that Smith had been embezzling money by coding her gas and electric bills to vacant apartments. Following an investigation, Towne Properties fired her.

As it turned out, prior ownership had permitted Smith to have free utilities, a fact that no one had bothered to disclose to new ownership. Even after discovering its mistake, however, the company refused to reconsider its termination decision.

The appellate court concluded that the district court had properly dismissed Smith’s discrimination lawsuit. Why? Because, even though the employer’s reason for firing her turned out to be incorrect, it had an honest belief about it when it reached its decision.

To win on her claim, Smith must show (among other things) that Towne’s explanation for firing her was pretext for disability discrimination. In other words, that the neutral explanation is simply cover for a discriminatory motive. Smith can’t show a trialworthy dispute about pretext if Towne honestly believed that she was misappropriating utilities even if that belief turned out to be mistaken.

The court relied on the company’s investigation, including interviews of witnesses and review of documents, to conclude that “Towne made an informed decision based on specific facts.”

The “honest belief rule” is one of the most effective shields available to employers in discrimination cases. As long as the employer has an “honest belief” in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because, in reality, it is incorrect.

Yet, if you want to be able to argue that your honest belief justifies your decision, you must be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence developed in a thorough investigation, is best. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities. Smith v. Towne Properties Asset Management is a good roadmap for employers to follow in claiming the protections of this rule, in the event a decision later turns out to be mistaken.

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

COVID-19, coronavirus, public health crisis

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.

COVID-19, coronavirus, public health crisisPractically 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