On September 3, 2020, the DOL sent a revised proposed rule regarding paid leave under the Families First Coronavirus Response Act (FFCRA) to the Office of Management and Budget for its review, according to an OMB posting. Though the OMB posting does not disclose the proposed rule’s contents, it is widely believed that the
Many schools across the US are not welcoming students back for full-time in-person learning in the fall. On August 5, 2020, after Chicago Public Schools announced it would begin the academic year remotely in September, New York City became the last remaining major school system in the country to even try to offer in-person classes this fall. Proposed plans for schools that aren’t fully reopening range from full remote learning to hybrid models, where students are in school only half a day or several days a week coupled with a remote learning component from home. Either way, employers are likely to find themselves inundated with requests from parents of school-age children for continued work from home arrangements or other work-schedule flexibility. In our Q&A below, we have highlighted issues employers may want to keep in mind as employees with school-age children try to navigate a school year with its own “novel” aspects.
1. Are employers legally obligated to provide any sort of leave for employees who have to stay home with their children if schools don’t fully reopen?
It depends. If the employer is a “covered employer” under the federal Families First Coronavirus Response Act (FFCRA), employees may be eligible for paid leave under the FFCRA. The FFCRA was enacted to provide employees with COVID-19 related paid leave. Covered employers under the FFCRA (generally, private sector employers who have fewer than 500 employees at the time the leave request is made) are required to provide eligible employees with partially paid child care leave for certain COVID-19-related reasons, including if the child’s school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
Does virtual learning count as a “closed or unavailable” school for purposes of the FFCRA? Though the DOL guidance and FFCRA regulations have not spoken directly on this topic, the DOL’s early Q&A guidance on the FFCRA indicates that a school is “closed” for purposes of EPSLA or EFMLEA leave when the “physical location where [the] child received instruction or care is now closed.” The focus on “physical location” signals that if the school building is closed to students and students are required to learn remotely, the school is “closed” for purposes of the FFCRA.
The FFCRA imposes two federal leave obligations on employers – the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA).
- Under the EPSLA:
- An eligible employee may take up to two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is unable to work or telework for reasons including to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19. Pay is capped at $200 per day and $2,000 in the aggregate.
- Under the EFMLEA:
- An eligible employee may take up to twelve weeks of “expanded” FMLA leave when unable to work or telework due to a need for leave to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
- The first two weeks of EFMLEA leave are unpaid. An eligible employee may use paid sick leave under the EPSLA or other accrued paid leave under the employer’s leave policies to receive pay for those two weeks.
- An eligible employee may take up to an additional 10 weeks of paid EFMLEA leave at two-thirds the employee’s regular rate of pay, based on the number of hours the employee would be normally scheduled to work those days. Pay is capped at $200 per day and $10,000 in the aggregate.
In addition, state and local leave laws may apply, many of which either provide additional leave or state that providing care for a child whose school is closed or unavailable for COVID-19 reasons is a protected reason for an employee to take leave.
On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.
A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.
Parents and employers are both challenged by this conundrum. This week we discuss the complications that arise for employers as students return (and do not return) to virtual and in-person campuses, and practical tips for navigating obligations under state and local leave laws, FFCRA and more.
Please click here to watch this week’s video chat.
On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.
Disability-Related Inquiries and Medical Exams
A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?
No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.
We hope that you, your families and colleagues are safe and doing well. We know these are difficult and challenging times for everyone, including US employers. As always, we are here to help you navigate the complexities of our current — and quickly changing — environment.
As a further update to our post here, on Thursday, the DOL issued an additional 22 FAQs on FFCRA, addressing required certifications for leave, healthcare coverage during leave, intermittent leave, teleworking, and several other topics. In a major and unexpected twist, DOL takes the position that FFCRA leave is not available if an employer…
The Department of Labor just published its first round of guidance on the FFCRA, including two fact sheets and a FAQ explaining key provisions of the paid sick leave and paid child care requirements:
The DOL also published sample FFCRA posters that federal and private employers are required to post in the workplace, as well as a FAQ on how and where to post them. Notably, emailing the posters to remote workers satisfies the posting requirements.
Importantly, DOL has elected to make the paid leave provisions of the FFCRA effective April 1, 2020, instead of the anticipated April 2 date. The DOL also announced a 30-day suspension on enforcement actions if employers attempt in good faith to comply with the FFCRA.
On Friday, March 20, 2020, the Internal Revenue Service (IRS), US Department of Labor (DOL), and US Department of the Treasury published a joint news release (Release) regarding tax credits available to employers who will be required to provide paid sick and family care leave for COVID-19-related purposes under the Families First Coronavirus Response Act…
Everything You Need To Know Right Now
After a “warp speed” Senate vote overwhelmingly approving the Families First Coronavirus Response Act (FFCRA), President Trump signed the FFCRA into law yesterday. The legislation is historic; it was not only enacted in days instead of the usual months, but for the first time in US history, many…