LEGISLATIVE UPDATE: EXPANDING LEAVES AND PANDEMIC COVERAGE

Posted On September 28, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

September 28, 2020

 

September has been quite the month for expanding leave benefits, both COVID-19 related and otherwise. Oregon has issued an administrative rule permanently allowing for sick child leave to be taken for school closures, California expanded coverage under the California Family Rights Act (CFRA) as well as creating a supplemental sick leave for some of those left out of the Families First Coronavirus Response Act (FFCRA), Hawaii adds care of grandchild as a covered reason for leave under the Hawaii Family Leave Act (FLA), and the city of Brotherly Love has enacted an ordinance providing a public health emergency paid leave.

Here’s a summary of what you need to know:

School Closures and Unavailable Childcare in Oregon

Back in March of 2020, in response to the COVID-19 pandemic, the Oregon Bureau of Labor and Industries issued a temporary administrative order expanding the scope of sick child leave under the Oregon Family Leave Act (OFLA) to include care of a child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official. On September 11, 2020, the Bureau made the administrative order permanent.  Additionally, the Bureau also issued a temporary administrative order providing clarification with regard to the permanent change. In its temporary order, the Bureau clarified the following:

  • "Child Care Provider" means a place of care or person who cares for a child.
    • A person who cares for a child includes paid (nannies, au pairs, and babysitters) and unpaid (grandparents, aunts, uncles, or neighbors) individuals
    • Place of care means any physical location in which care is provided for a child including day care facilities, preschools, before and after school care programs, schools, homes, and summer camps
  • "Closure" means a closure that is ongoing, intermittent, or recurring and restricts physical access to the child's school or child care provider
 

The Bureau also clarified that an employer may request verification of the need to care for a child due to a school closure, including the name of the child being cared for, the name of the school or child care provider that is closed or unavailable, and a statement that no other family member is willing and able to care for the child during daylight hours. Note that this administrative rule mirrors the recent guidance issued by the Department of Labor with regards to school closures under the FFCRA.  Matrix is already administering OFLA sick child leave in accordance with this new rule, based on the prior temporary administrative order.

California COVID-19 Supplemental Paid Sick Leave

On September 9, 2020 California Governor Gavin Newsom signed AB 1867 into law. While AB 1867 includes a mandate creating a small employer family leave mediation pilot program and a requirement that food sector employees wash their hands every 30 minutes, you’re probably most interested in the expansion of the Healthy Workplaces, Healthy Families Act of 2014 (California’s paid sick leave law). In its relevant part, AB 1867:

  • Expands California’s paid sick leave law to provide a COVID-19 supplemental paid sick leave for food sector workers, health care providers and emergency responders whose employer has excluded them from coverage under the federal FFCRA, and employees of private businesses who employ more than 500 employees.
  • The COVID-19 supplemental paid sick leave is intended to cover employees excluded from the FFCRA, and mirrors the FFCRA with regard to the amount of leave available (2 weeks of leave, up to a maximum of 80 hours).
  • However, unlike the FFRCA, the COVID-19 supplemental paid sick leave does not include provisions for care of others or for school closures and may only be used for the following reasons:
  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
  • The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19
  • The employee is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19

These COVID-19 supplemental paid sick leave provisions are set to expire as of December 31, 2020, or upon the expiration of any federal extension of the FFCRA, whichever is later. 

Hawaii Defines Siblings and Covers Grandchildren

On September 15, 2020, Hawaii Governor David Ige signed HB 2148, expanding Hawaii’s Family Leave Act with the following changes:

  • "Sibling," which was previously undefined, is now defined to mean an individual who is a biological, adopted, or foster brother or sister; or a stepbrother or stepsister of an employee
  • The bill added “grandchild” to the list of covered relationships. FLA now provides up to four weeks of family leave during any calendar year to care for the employee's child (biological, adopted, or foster son or daughter; a stepchild; or a legal ward), spouse, reciprocal beneficiary, sibling, grandchild, or parent (defined broadly to include biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law) with a serious health condition.

Although HB 2148 was just signed, its effective date was July 1, 2020. Matrix will begin administering the Hawaii FLA in accordance with these changes immediately.

California Expands CFRA

On September 17, 2020, California Governor Gavin Newsom signed SB 1383 into law. The new law significantly expands CFRA. The following changes take effect January 1, 2021:

  • Expands CFRA to cover any employer with 5 or more employees (currently, employer coverage starts at 50 or more employees)
  • Repeals the New Parent Leave Act (currently the NPLA provides bonding leave for employees of employers with 20-49 employees)
  • Expands covered relationships from child, parent, spouse, and domestic partner to include grandparent, grandchild, and sibling
  • Removes the age limit to care for a child; leave will be available to care for a child under age 18 or an adult dependent child
  • Allows parents who are employed by the same employer to each have the full 12 weeks of bonding leave without sharing the CFRA entitlement
  • Adds as a covered leave reason qualifying military exigencies related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child, or parent in the Armed Forces

Matrix will be prepared to administer the expanded CFRA as of January 1, 2021.

Philadelphia Public Health Emergency Paid Sick Leave

On September 17, 2020, Philadelphia Mayor Jim Kenny signed an amendment to Chapter 9-4100 of the Philadelphia Code expanding the city’s existing paid sick leave law by providing a new public health emergency leave to those employees not covered by the FFCRA. Like the FFCRA, the Philadelphia ordinance provides employees with up to 80 hours of paid leave to be used at any time during a declared public health emergency for purposes that closely track FFCRA.  For a detailed discussion of the new Philadelphia ordinance, check out this article from A Better Balance.

Matrix can help!

At Matrix, we monitor state and federal legislation daily to stay on top of these changes as they happen. If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

HOW LONG IS TOO LONG? THE CONTINUING SAGA OF LEAVE AS AN ADA ACCOMMODATION

Posted On September 17, 2020  

by Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

& Marti Cardi, Esq. - Vice President, Product Compliance

September 17, 2020

 

Back in July, we celebrated 30 years of the Americans with Disabilities Act of 1990 (ADA). Yet employers still struggle with how long a leave of absence is reasonable as an accommodation.  Two recent employee-friendly cases from the 9th Circuit Court of Appeals teach us that, in the 9th Circuit, at least, there may not be a limit.  Today, we’re going to take a look at these two cases, review what the Equal Employment Opportunity Commission (EEOC) and other courts have said on this issue, and address lessons that ALL employers, wherever located, can take away from the 9th Circuit decisions.

First, some basics

Title I of the ADA prohibits job discrimination on the basis of disability. Specifically, the law prohibits

“Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” [Emphasis added.]

So we have two elements here that employers must consider when an employee requests an accommodation:  Is it “reasonable,” and will it impose an undue hardship on the employer? 

The ADA defines reasonable accommodation as “making existing facilities used by employees readily accessible to and usable by individuals with disabilities;” providing examples such as job restructuring, part-time or modified work schedules, and acquisition or modification of equipment or devices, just to name a few. Out of the 3,351 words in Title I of the ADA, “leave” is not used once.  Yet the EEOC and the courts that have addressed the issue find that as a general principle, leave of absence can be a reasonable accommodation.  As we’ll see below, the devil is in the details – how long is reasonable?  In plain English, how long is too long?  Seems that one factor is, in what federal court district do you have employees?

As to undue hardship, this is defined by the ADA as significant difficulty or expense. Factors to consider include the nature and net cost of the accommodation, resources of the facility involved, overall financial resources of the employer, the type of operation or operations of the employer, and the impact of the accommodation upon the operation.  It is very hard to establish undue hardship (it takes a lot more than just some expense or some difficulty) and so if employers are left with undue hardship as the only possible reason to deny leave of absence, it’s a tough row to hoe. 

 

The 9th Circuit:  Extended leave is not per se “unreasonable”

Back to those recent 9th Circuit decisions that appear to widen the scope of leave as a reasonable accommodation. WAY back in 2019 B.C. (Before COVID), the 9th Circuit held in Ruiz v. ParadigmWorks Group, Inc., that an additional 5 weeks for a broken ankle beyond her initial 12 weeks of FMLA was a reasonable accommodation since the extension was for a finite period and the injury was the type of injury the employee can expect to recover from in the foreseeable future. Likewise, in Kachur v. NAV-LVH, LLC, the court held that a request for an additional 4 weeks of leave, after already taking 16 weeks of leave was, on its face, reasonable. Here, the employee had undergone knee surgery and had exhausted his FMLA entitlement. He had already taken an additional 4 weeks beyond his FMLA entitlement of 12 weeks, and had requested an additional 4 weeks when his employer denied the request and terminated employment. The court held that the employee’s frequent updates could be understood as estimates of his expected return to work. Thus, in each case, the court found the leave extension request was reasonable and the employer was left with that nasty undue hardship argument as its only defense to not giving the employee extra leave.  Not sure what it is about the 9th Circuit . . .

The 9th Circuit handles appeals of decisions of the federal district courts of Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and of course, California. Never mind, I think I figured out what it is about the 9th Circuit.

Good news from other courts and the EEOC (well,  sort of)

Courts other than the 9th Circuit have recognized durational limits on what constitutes a “reasonable” leave of absence.  For example, in 2017, the 7th Circuit Court of Appeals issued an employer-friendly decision in Severson v. Heartland Woodcraft, Inc.  Although the court acknowledged that a brief period of leave to deal with a medical condition could be a reasonable accommodation, it ruled that another 2-3 months after exhaustion of FMLA was not reasonable.   The court underlined that an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  If “employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.”

Similarly, in Hwang v. Kansas State University, the 10th Circuit held in 2014 that a 6-month leave of absence was not a reasonable accommodation. So in these circuits, at least, the employer may have an argument that a leave of absence or extension request of significant duration, even if for a finite time, may be unreasonable.  For more on these two cases, check out this past post.

On a related note, in 2016, the EEOC provided guidance on employer-provided leave and the ADA (a must-read document for employers struggling with this issue). The EEOC indicated that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.”  However, the EEOC supported the plaintiff in the Severson case and argued that additional leave requested was a reasonable accommodation. 

Pings for Employees

When looking at these decisions together, perhaps there is some cohesiveness.  At least, we can see a few common lessons that all employers should keep in mind.

  • There’s no “one size fits all”: The courts will look at the particulars of each scenario to make their determination with regard to whether an accommodation is reasonable. Consider every leave request, request for extension of leave, or series of requests individually, each time, for reasonableness and undue hardship.That’s not bad advice for employers even outside of the 9th Circuit.
  • Consider the nature of the impairment: Is this something that you can reasonably expect recovery from? This may cast a more “reasonable” light on the employee’s leave request.Contrast the broken ankle and knee surgery in Ruiz and Kachur with leave needed due to a condition with a less-certain prognosis for near-term recovery.
  • What’s past is past: When making its determination of reasonableness, it appears the 9th Circuit gave little weight to the leave already taken, focusing on the specific pending leave request in isolation instead of the total leave duration. The EEOC, on the other hand, in its guide on employer-provided leave and the ADA, indicated that leave already taken “pursuant to a workers' compensation program, the FMLA (or similar state or local leave law), an employer's leave program, or leave provided as a reasonable accommodation” may be considered when assessing undue hardship.
  • Be generous with your employees.If you find yourself in a gray area as to whether a requested leave or extension is of an unreasonable duration, try to work it out with the employee rather than deny on shaky grounds or rely on an undue hardship defense.The costs of litigation can quickly outweigh the cost of providing more leave.Also, consider alternatives to more leave – can the employee return to work with an on-the-job accommodation(s) such as temporary reassignment, modification of nonessential duties, or assistive equipment?But consult your employment law attorney in any specific case – the facts really matter!
  • Read between the lines: In both the 2019 and 2020 decisions, the additional leave requests were for a finite period of time and the 9th Circuit appeared to give weight to the employees’ frequent updates, indicating that the employers should have inferred return to work plans. The court appears to make a distinction between a series of specific extensions and an indefinite leave with no known or predicted return to work date.The court pointed out that it has never held that leave of any specific duration is in and of itself unreasonable (perhaps thinking of Severson and Hwang without citing them).

Matrix Can Help

Be it modifying work schedules, job restructuring, or leave as an accommodation, our team of ADA Specialists are ready to help you and your employees navigate through the ADA process. While the final decision whether to accommodate lies with you, our team manages claim intake, assesses the medical obtain, maintains records, and facilitates the interactive process, as well as any follow up that may be needed. For more information about our ADA product, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at ping@matrixcos.com.

DOL FACES OFF WITH THE NEW YORK FEDERAL COURT – AND WE HAVE MORE FFCRA GUIDANCE

Posted On September 14, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

September 14, 2020

 

Those fun folks at the U.S. Department of Labor just LOVE releasing important information on a Friday!  I think it displays a cruel sense of humor – they get to relax and enjoy the waning days of summer over the weekend, while the rest of us in the absence management industry get to parse though the new 53-page proposed temporary regulations released by the DOL on September 11. 

 

And on top of that, comments for proposed revisions to the FMLA regulations are due Tuesday September 15. Sure we could have gotten those done earlier if we had known . . . but there have been a few other things going. Can you say “paid family and medical leave”? The ADA and COVID? State COVID laws? California with about a billion pending leave of absence bills approaching governor’s signature deadline? We either have or will report on each of these . . . just watch this space! While we work out a tech issue with the blog, if you or a colleague want to SUBSCRIBE to Matrix-Radar, just email us at ping@matrixcos.com, and our colleagues will make it so!

 

So what happened?  Well, you will remember (I’m sure) the New York federal court’s ruling last month that struck several provisions of the DOL’s temporary regulations regarding the Families First Coronavirus Response Act: 

  • The availability of FFCRA benefits only if the employer has current work for the employee
  • The regulations’ broad definition of “health care provider” for the purposes of FFCRA coverage exemption
  • Requiring employer consent to intermittent leave
  • Requiring documentation prior to taking FFCRA leave

You can read about it in detail on our blog here. The DOL has now come out with revised regulations that will be effective September 16, 2020, barring any further action.

Here’s the gist of the issues and the DOL’s response.  Most of this comes from the DOL’s preamble – explanatory material that precedes the actual revised regulations.  Let me tell you, it is fascinating reading:

  1. Are FFCRA benefits available to employees only if the employer has current work for the employee?

    The court:  The New York court ruled that the DOL overreached when it took the position that FFCRA benefits were available only if the employer has current work for the employee.  The court stated that the DOL had not given sufficient justification for this interpretation and held that if an employee is unable to work due to one of the FFCRA qualifying reasons, that employee is entitled to FFCRA benefits even if the employee is also unable to work because there is no work to be had. 

    The DOL’s response, short answer:  New York court, go fly a kite.  We stand our ground and continue to guide that an employee is not entitled to FFCRA leave if the employer has no current work for the employee.  

    The details:  In the new proposed temporary FFCRA regulations (yes, all those adjectives apply!) the DOL has struck back, defending and maintaining its original position but with greater detail.  As explained by the DOL, the FFCRA’s provisions that an employer must provide FFCRA leave to an employee if the employee is unable to work “because” of or “due to” a qualifying reason for leave under FFCRA establishes a “but-for” causation requirement – the employee would not be able to work but for one of the 6 reasons for leave provided in the statute.  The DOL argues that its continued application of the work-availability requirement is further supported by the fact that the use of the term “leave” in the FFCRA is best understood to require that an employee is absent from work at a time when he or she would otherwise have been working. 

    The DOL actually provides even more justification for the work-availability rule in the preamble to the new regulations, so read away with your cocktail in hand if you like that kind of stuff (I do!).

    And on a side note, the New York court had criticized the DOL for applying the “work-availability” rule only to 3 of the 6 FFCRA leave reasons.  The DOL agrees that there is no reason for differentiation and now takes the position that indeed, the rule applies to all 6 leave reasons.

    Matrix guidance:  This one’s easy.  No need to provide FFCRA leave and benefits to an employee not currently working whether due to a COVID furlough, a pre-planned vacation or sabbatical, or other reasons not caused by one of the 6 leave reasons specified in the FFCRA.  But, remember the anti-retaliation provisions of FFCRA:  Employers may not make work “unavailable” in an effort to avoid FFCRA obligations.  Altering an employee’s schedule in an adverse manner because that employee requests or takes FFCRA leave may be impermissible retaliation.

  2. Was the temporary regulations’ initial definition of “health care provider” too broad for the purposes of FFCRA coverage exemption?

    The court:  FFCRA allows employers of health care providers to exempt such employees from FFCRA entitlements.  The DOL supplied an expansive definition of “health care provider” for this purpose. The court struck the DOL’s definition because it focused on the employer’s business rather than the employee’s role and allowed employers to exempt anyone “employed at” a doctor’s office, hospital, medical school, or a number of other facilities “where medical services are provided,” as well as such facilities’ contractors.

    The DOL’s response, short answer:  The DOL acceded to this part of the ruling and has revised its definition of “health care provider” for purposes of the exemption to focus on the skills, role, duties, or capabilities of the employee rather than the identity of the employer.

    The details: In 29 C.F.R. § 826.30(c)(1) the DOL has adopted a revised definition of “health care provider” for purposes of the employer’s optional exclusion of employees who are health care providers from FFCRA leave.  As explained in the new regulations’ preamble, the revised regulations now define a “health care provider” to include physicians and others who make medical diagnoses.  The revised regulations also identify “additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers.  . . . [An employee is a health care provider if he or she is ‘capable of providing health care services.’  The definition then further limits the universe of relevant ‘health care services’ that the employee must be capable of providing to qualify as a ‘health care provider’—i.e., the duties or role of the employee.  Specifically, a health care provider must be ‘employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.’”

    Matrix guidance:  This really seems reasonable.  The DOL’s original definition would have allowed employers to exempt persons that had nothing to do with the actual application of health care services.  Going forward, employer of any type of health care provider should use discretion in applying the FFCRA exemption only to those who fit the new DOL definition.  Although technically the new regulation is only applicable as of September 16, overbroad application of the exemption after the New York court’s ruling is risky, so we recommend following the new DOL rule immediately.  And remember, you can always be more generous and provide FFCRA benefits to employees you might technically be able to exempt.

  3. Is employer consent to intermittent leave required?

    The court:  Although there may be a legitimate need to limit an employee’s access to the workplace if the employee poses an infection risk, such as when the employee is quarantined; exhibits symptoms and is seeking a diagnosis; or is caring for a quarantined family member, there is no such risk for leave necessitated by an employee’s child’s school closure or unavailability of day care or if the employee is working remotely. As a result, the court held there is no justification for allowing this type of intermittent leave, or intermittent leave from at-home work, only with employer consent. (The regular FMLA does not require employer consent for intermittent leave except for bonding leave, although it is only available for leave due to the employee’s or family member’s serious health condition when medically necessary).

    The DOL’s response, short answer:  The DOL is again standing its ground on this one.  Employer consent is required for intermittent leave for FFCRA reasons that don’t pose a risk of spreading infection if the employee returns to work and for intermittent telework.  But with creative logic, employer consent is NOT required when occasional leave is needed due to a school’s hybrid return to school schedule, with some days of remote learning and alternate days of in-person attendance.

    The details:  Under the regular FMLA, intermittent leave is available without employer consent only when medically necessary for leave due to the employee’s or family member’s serious health condition and for leave due to qualifying military exigencies (which by their nature are likely to occur sporadically).  Long-standing FMLA regulations 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.  See 29 C.F.R. § 825.120(b), 121(b). 

    The DOL explains that the reasons for allowing intermittent leave without employer consent in the above two situations (medical necessity and military exigency) are not applicable to taking leave intermittently under the FFCRA for the only non-medical reason:  school or day care closure.   Long-standing FMLA regulations 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.  See 29 C.F.R. § 825.120(b), 121(b).  The same should apply to intermittent leave under FFCRA for school closures. 

    Further, since employer permission is a precondition under the FFCRA for telework, the DOL maintains it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave.

    What about school closures?  In good news for employers, however, the DOL takes the position that employer approval is not required for employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.  In such cases the employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week.  This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.

    Matrix guidance:  Although based on further defined reasoning, this supports the interpretation of the issue we offered in a previous blog post that employer consent is not needed when the school itself is only open intermittently.  However, hybrid school schedules will almost certainly be regular and predictable, and announced well in advance.  Under the FFCRA, employers can require employees to provide as much advance notice as is practicable of leave needed for school closures.

  4. Can an employer require documentation prior to an employee taking FFCRA leave?

The court:  The original FFCRA regulations stated that documentation to support an FFCRA leave must be submitted to the employer “prior to taking” the leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable. The documentation requirement itself was not stricken, just the requirement that it be provided prior to taking leave.

The DOL’s response, short answer:  The temporary regulations have been revised to comply with the court’s ruling. 

The details:  29 C.F.R. § 826.90(a) now provides that an employee must provide notice of leave for FFCRA paid sick leave as soon as is practicable after the first day of absence, and as soon as practicable for leave under the expanded FMLA for school closures.  At a minimum this will include the employee’s name; the date(s) for which leave is requested; the qualifying reason for the leave; and an oral or written statement that the employee is unable to work because of the qualified reason for leave.  The employer may also require the employee to furnish the additional information set forth in 29 C.F.R. § 826.100(b)-(f) at the same time (generally, more details needed to support the tax credit).

Matrix guidance:  Obviously, employers will want to follow the new regulations regarding employee notice.  However, this portion of the new regulations still leaves some unanswered questions which we posed here when the New York court first issued its decision.  In order to get the federal tax credit for benefits paid under the FFCRA, the employer MUST get detailed documentation from the employee.  So: If the employee takes leave and never provides the required documentation, can the employer go back and deny the leave retroactively? If so, how would the employer recoup wages paid?  (Beware of state and federal laws regarding withholding from employee paychecks!) Or, how would the employer qualify for the tax credit?

In conclusion . . . Hello . . . Are you still with me? 

In addition to the new temporary regs, the DOL issued 3 new FFCRA Q&As addressing the effect and scope of the New York court’s ruling and answering one of the questions about the scope of the court’s ruling – was it applicable only to the parties to the case, only in the Southern District of New York, or throughout the whole country?  In Questions 101 and 102, the DOL explains that the effect of the court’s ruling is nationwide and the new regulations are applicable nationwide.  So there.  The revised regs are, of course, open to another lawsuit challenging them but we find that unlikely.  The DOL’s explanations in the preamble thoroughly address the four provisions stricken by the New York federal court and either adopt the court’s findings in new regs or exhaustively and better explain its reasons for keeping two of the challenged provisions.  Also, remember that the FFCRA is set to expire on December 31, 2020, leaving little time in which to mount a court challenge and get a ruling.  Unless FFCRA is extended  . . .

BACK TO SCHOOL UNDER THE FFCRA – DOL PROVIDES JUST-IN-TIME GUIDANCE

Posted On August 31, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 31, 2020

 

Schools in many parts of the country are back in session and more will be opening daily.  But “back to school” doesn’t look like it used to in most regions.  School districts are reopening with a wide gamut of approaches, including physically re-opening full time, remote learning only, and mixtures of both. 

In other words, there is no “new normal” in school district arrangements and parents are left with an array of questions.  Not the least of these is how the Families First Coronavirus Response Act will apply to these situations, especially in light of prior guidance from the U.S. Department of Labor that FFCRA leave could be taken intermittently for school closures only with employer agreement.  See the DOL’s FFCRA Questions and Answers, questions 20-22.   

 

For employees of companies with fewer than 500 employees, the Families First Coronavirus Response Act provides paid, job-protected time off when a parent can’t work because his child’s school is closed due to COVID-19. You can read our most comprehensive summary here, and find other articles relating to FFCRA by putting that term in the search box of our blog on any page.

 

I posed these questions to the DOL in late July: 

  1. Does an employee need employer consent to intermittent leave when a school is physically open only intermittently?
  2. And what if the school is physically open, but a parent chooses not to send a child to school due to continuing concerns about COVID-19 exposure?

Now we have answers!  On August 27 the DOL issued 3 new Q&As addressing these issues.  In short:

  • If a child’s school is operating on a hybrid schedule and the child is permitted to attend school in person only on certain days, the days the child is at home for remote learning are covered by FFCRA. (Question #98) Although this Q&A does not directly address the issue of intermittent leave and employer agreement, the gist of the guidance is that employer consent is not needed when the school itself is only open intermittently.
  • For any days a child’s school is physically open, a parent cannot use FFCRA leave even if the parent would prefer to keep the child at home. (Question #99) Harsh, perhaps, but that is a strict (and correct, in my opinion!) interpretation of the law.
  • If a school starts the school year with remote learning but later opens to in-person attendance in whole or in part, FFCRA leave is available initially.When the school reopens, FFCRA will not be available on those days the child could attend in person. (Question #100, referring back to #98 and #99)

You can read the full questions and the DOL’s answers here.

And now a word of thanks to my fellow bloggers:  Hey, it’s not just you – I absolutely admit it’s tough keeping up with all the COVID-19 news and other leave, disability, and accommodation developments.  That’s why you come to Matrix-Radar, and for that I am grateful! But that said, where do I go?

Glad you asked. In addition to many technical resources, I get help and validation of my interpretations (although sometimes we disagree!) from my fellow bloggers Jeff Nowak at FMLA Insights (a long-time friend and collaborator), Eric Meyer at The Employer Handbook, and Jon Hyman at Ohio Employer's Law Blog.  I urge you to sign up for each of these blogs (and this one if you haven’t already!). Jeff and I both cover the FMLA and ADA; this blog (Matrix Radar) also addresses state leave laws in detail.  Eric and Jon cover the same topics as well as broader employment law issues – and they blog nearly every day!!!  Eric first encouraged me to send my questions above to the DOL.  And don’t let Jon’s blog title reference to Ohio fool you – his coverage goes well beyond Ohio issues. 

Buckle up, it’s going to be a wild ride!

We are approaching the final quarter of 2020 and I think it’s safe to say my colleagues and I have said and written the word “unprecedented” an unprecedented number of times. Maybe you can commiserate? Nothing like a global pandemic during a presidential election year to pour gasoline on an already-raging national debate on paid family leave! Here are three things to remember, in ascending order of importance:

  1. We are writing history right now; there is no playbook. This is maddening, especially for detail oriented compliance professionals, but it is also exhilarating in a way. Take a breath and think of it as a journey.
  2. Sometimes questions can’t be voiced until change is implemented and systems road-tested. Under the best of circumstances, evolution is fluid and takes longer than you want it to.
  3. And finally, you don’t have to be the expert on everything! Find resources like this blog, and the ones referenced above; stay informed; keep closely aligned with your CEO and legal team; and, in the end, we will be okay.

Not “back to normal,” perhaps, because backwards isn’t an option. But we will be okay.

While we work out a tech issue with the blog, if you or a colleague want to SUBSCRIBE to Matrix-Radar, just email us at ping@matrixcos.com, and our colleagues will make it so!

EMPLOYEE RIGHTS UNDER FFCRA EXPANDED AFTER NEW YORK FEDERAL COURT RULING

Posted On August 06, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 06, 2020

 

As if figuring out all the coronavirus-related laws wasn’t difficult enough, we now have a court ruling that turns some of the FFCRA rules we thought we understood on their heads. On August 3 a federal court in New York struck down parts of the Department of Labor’s Families First Coronavirus Response Act (FFCRA) regulations, holding that the DOL had exceeded its authority by limiting employee rights under the act in four key aspects:

  • The availability of FFCRA benefits only if the employer has current work for the employee
  • The regulations’ broad definition of “health care provider” for the purposes of FFCRA coverage exemption
  • Requiring employer consent to intermittent leave
  • Requiring documentation prior to taking FFCRA leave

The ruling came in a lawsuit filed by the State of New York against the U.S. Department of Labor, case no. 20-cv-3020.

But, before we dive in, I need to raise an alert about two very important and unresolved issues:

  • First, does the New York court’s ruling have nationwide impact or is it only applicable in the Southern District of New York where this court sits? The ruling is by a federal court and it does invalidate some federal regulations. But whether it is binding on the DOL and employers nationwide is, surprisingly, not clear.
  • Second, wherever it applies, is the ruling retroactive to the effective date of FFCRA (April 1, 2020) or will it apply to benefits claims only from the date of the ruling, forward?

So with those big question marks hanging overhead, let’s look at the court’s ruling in which the judge invalidated four aspects of the DOL’s regulations interpreting FFCRA:

  1. Allowing employers to deny FFCRA benefits to employees on furlough. I’ll say it up front: this is the most nonsensical part of the court’s ruling, in my humble opinion. FFCRA provides paid sick leave and expanded FMLA leave to employees who are “unable to work (or telework) due to a need for leave” because of one of the various covered reasons. The DOL’s regulations exclude employees from these benefits if their employers do not have work for them – the “work-availability” requirement, as it is referred to in the ruling.  This makes sense to me – if the employer has no work available, the employee has no work to take leave from.

    However, the court held that the statutory terms “because” or “due to” do not foreclose an interpretation entitling employees to FFCRA benefits “if the inability to work has multiple sufficient causes – some qualifying and some not.” Moreover, the court observed that the DOL’s explanation of its justification for the work-availability requirement (no work = no work to take leave from) is insufficient to support its position; imposing that requirement “is an enormously consequential determination that may considerably narrow the statute’s potential scope.” So, following the court’s ruling, if an employee is unable to work due to one of the qualifying reasons, that employee is entitled to FFCRA benefits even if the employee is also unable to work because there is no work to be had.

    OK, my head is starting to hurt, but we’ve just started.

  2. As a refresher, FFCRA provides job protected and paid leaves of absence to the workers for employers with fewer than 500 employees –

    • Up to 80 hours of paid sick leave for 6 COVID-related qualifying reasons (employee’s own quarantine due to a governmental order or provider’s recommendation, caring for a family member in quarantine, COVID symptoms plus seeking a diagnosis, school/day care closures, and other similar situations as identified later) and
    • Up to 12 weeks of job protected leave due to the closer of a worker’s child’s school or place of care (2 weeks unpaid but possibly covered by the paid sick leave, and 10 weeks at partial pay).

    You can read our prior blog post covering the details of FFCRA here, our post about the DOL supporting regulations here, and lots of other FFCRA and COVID-19 posts by putting those terms in the blog search box.

  3. Providing a very broad definition of “health care provider” to allow employers to exempt workers from coverage. The FMLA, which supplies the relevant statutory definition for both provisions of the FFCRA at issue, defines a “health care provider” as: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.”  The regular FMLA regulations expand the definition pursuant to (B) to include many additional professionals such as podiatrists, dentists, clinical psychologists, optometrists, nurse practitioners, and physician’s assistants. 

    However, the DOL supplied an even more expansive definition of “health care provider” for the FFCRA under the authority of section (B). According to the court, the DOL’s definition goes much too far as it focuses on the employer’s business rather than the employee’s role and allows employers to exempt anyone “employed at” a doctor’s office, hospital, medical school, or a number of other facilities “where medical services are provided,” as well as such facilities’ contractors. This could include individuals such as “an English professor, librarian, or cafeteria manager at a university with a medical school” or, as was posed to me during a recent COVID webinar, a hospital’s grounds crew. Health care providers?  Methinks not (and neither did the court). 

    So, for the time being, it seems we are left with just “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery” who may be exempted by an employer from entitlement to FFCRA benefits. Whether the additional categories of health care providers under the regular FMLA regulations also applies to the FFCRA exemption is very much in doubt.  Even so, that would leave out a lot of critical roles such as nurses and EMTs, just to name a couple.

  4. Requiring employees to obtain employer consent to take intermittent FFCRA leave.  The court recognized there may be a legitimate need to limit an employee’s access to the workplace if the employee poses an infection risk, such as when the employee is quarantined; exhibits symptoms and is seeking a diagnosis; or is caring for a quarantined family member. But there is no such risk for leave necessitated by an employee’s child’s school closure or unavailability of day care or if the employee is working remotely. As a result, there is no justification for allowing this type of intermittent leave only with employer consent. (The regular FMLA does not require employer consent for intermittent leave except for bonding leave).

    As an aside, this resolves – at least in New York – the as-yet unanswered question of whether taking leave only on at-home days when a child’s school is reopening under a hybrid remote/classroom learning arrangement constitutes intermittent leave requiring employer consent. Employers, this one is pretty easy – just allow intermittent time here if the employee asks.

  5. Requiring employers to provide documentation prior to taking FFCRA leave.  The FFCRA does not address what, if any, documentation can be required of an employee to support a leave request. Rather, it just requires the employee to give such advance notice as “as is practicable” for foreseeable expanded FMLA leave and, with respect to paid sick leave, notice after the first missed workday in accordance with the employer’s usual notice procedures.

On the other hand, the FFCRA regulations have pretty detailed guidance on the documentation an employer can require to support an employee’s request for leave, and the regs state that such documentation must be submitted to the employer “prior to taking” FFCRA leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable.

This leaves employers (at least those in the Southern District of New York!) in limbo. The documentation requirement itself was not stricken, just the requirement that it be provided prior to taking leave. Indeed, in order to get the federal tax credit for benefits paid under the FFCRA, the employer MUST get detailed documentation from the employee. So: If the employee takes leave and never provides the required documentation, can the employer go back and deny the leave retroactively? If so, how would the employer recoup wages paid?  (Beware of state and federal laws regarding withholding from employee paychecks!) Or, how would the employer qualify for the tax credit? You get the idea.

What will happen next? Good question! To be honest, no one is sure when or how we will get clarity on the two big questions I posed above and lots of others.  Just do an internet search and you’ll find scads of law firm blog posts and newsletters with no concrete answers.  Possible next steps?  The DOL may appeal the court’s ruling and request a stay during the appeal.  It may choose to revise the FFCRA regulations to conform to the ruling (temporarily or for the duration of FFCRA). Additional lawsuits may be filed in other federal courts around the country. And on and on. . . . I would hope the DOL will realize the very difficult positon in which this opinion places covered employers, and issue some sort of guidance very soon.

Employers also need to be aware of the possible impact of this decision on similar state and municipal COVID-related laws.  There are some that incorporate the FFCRA to some extent and the impact of the New York ruling on these state and municipal laws is not clear.

What is Matrix doing? Another good question! We’ll be watching all of our sources for further information, obviously, and hoping for a definitive development.  In the meantime we will work with our clients covered by FFCRA to address the issues raised by the court ruling and administer FFCRA in accordance with collaborative consultation.  If you have questions, please contact your Reliance Standard or Matrix account manager.