The United States Department of Labor (DOL) wrapped up 2020 by issuing COVID-related guidance under both the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA).

FMLA Guidance

The DOL issued new FMLA guidance in the form of two “Field Assistance Bulletins” (FAB)[1], noting in a press release that the guidance is part of the DOL’s “ongoing efforts to support the American workforce through the pandemic recovery.”

In FAB 2020-7, the DOL addressed the employer notice provisions of various federal labor laws.[2]  With respect to the required posting of the general FMLA notice, the DOL explained that it will consider electronic posting by employers to satisfy the posting requirement when: (a) all hiring and work is done remotely; and (b) the employer posts the FMLA notice on an internal or external website that is accessible to all employees and applicants at all times.   To the extent an employer has a hybrid workforce (i.e. employees who work remotely and employees who work on-site), the DOL encourages employers to use electronic postings to supplement, not replace, their posting requirement of the general FMLA notice.

In FAB 2020-8, the DOL indicated that it will continue to apply a policy previously adopted in response to the pandemic on the subject of telemedicine and the “in-person” visit aspect of the definition of serious health condition under the FMLA.  The DOL will consider a telemedicine visit to constitute an “in-person” visit so long as the

Late last night, President Trump signed the newest COVID relief bill into law.  The new law amends several federal relief laws, including the Families First Coronavirus Response Act (“FFCRA”).  Specifically, employers who voluntarily provide FFCRA benefits after the end of the year may receive tax credits for qualifying leave provided through March 31, 2021.

Additional information about the FFCRA amendments in the new law is available here.  We will continue to monitor developments, including any relevant guidance that the Department of Labor may publish.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

Late on December 21, 2020, Congress passed a new federal COVID relief bill, which, if signed into law, would amend a number of laws, including the Families First Coronavirus Response Act (“FFCRA”).  The FFCRA currently requires covered employers to provide eligible employees with paid sick leave and partially paid emergency family and medical leave benefits through December 31, 2020.

Notably, the new bill does not extend the FFCRA’s mandate that employers provide such leave beyond the end of the year.  Instead, the new bill allows covered employers to receive a tax credit for leave that they voluntarily provide to employees from January 1, 2021 through March 31, 2021, if such leave would otherwise be covered by the FFCRA.

In practice, this means that if the new bill becomes law, under federal law:

• Employers will not be required to provide paid sick leave or partially paid emergency family and medical leave under the FFCRA beyond December 31, 2020.
• Employers may voluntarily provide paid sick leave or partially paid emergency family and medical leave under the FFCRA after December 31, 2020.
• If an employer voluntarily provides such leave benefits after December 31, 2020, they may be eligible for a tax credit for leave taken between January 1, 2021 and March 31, 2021.
• Tax credits are only available for leave that would otherwise be covered by the FFCRA (i.e., the employee is eligible for leave, the need for leave is for a covered reason, the employee has leave available, etc.).
• If
  

As 2020 is nearing an end, so too are the leave entitlements available to certain employees under the federal Families First Coronavirus Response Act (FFCRA).  Below are key points to keep in mind as we approach this end date, along with recommendations for 2021:

• FFCRA leave is available only through December 31, 2020.
• Any leave taken beyond December 31, even if for a qualifying reason, and even if the leave begins before December 31, is not FFCRA leave.
• Tax credits under the FFCRA are not available for leave that occurs after December 31.
• Continue to review requests for FFCRA leave through the end of December carefully to ensure the employee has a qualifying reason for leave.
• As schools begin to close for winter break, employers should be mindful that an employee is not eligible for FFCRA leave if the leave request is based solely on a school closure due to winter vacation or the end of an academic semester, as these are not “COVID-19 related reasons.”
• FFCRA leave is essentially “use it [for a qualifying reason] or lose it.” Employees are not entitled to either “carry over” unused FFCRA leave into 2021 or be paid out for any such unused leave.
• Prepare for 2021 by:
  • Considering potentially applicable state and local laws which may provide leave rights in COVID-19 related situations.
  • Identifying your company’s strategy for handling COVID-19 related leave requests, under existing or perhaps new policies. Ensure consistency among similarly-situated employees.
  • Determining whether to communicate with employees
    

In August, we informed you of a decision by a federal district court in New York (the “Court”) that invalidated four key provisions of the federal Department of Labor’s (“DOL”) regulations interpreting the Families First Coronavirus Response Act (“FFCRA”).  On September 11, 2020, the DOL acknowledged the nationwide impact of the Court’s ruling, and issued much-anticipated revised regulations addressing the four provisions.  The new regulations will be formally published, and become effective, on September 16, 2020.

As described in detail below, in the new regulations, the DOL: (a) affirmed the “work-availability” requirement; (b) affirmed the “employer consent” requirement for intermittent leave; (c) narrowed the scope of the “health care provider” definition for purposes of the available exemption from the leave entitlement; and (d) clarified the timing of notice and documentation requirements.  The DOL also provided new and revised Q&As on these subjects (see Q&A #s 16, 21, 22, 56, and 98-103).

Work-Availability

In the revised regulations, the DOL held firm to the requirement that employees are only entitled to leave if they are unable to work “because of” a COVID-19 qualifying reason.  The DOL addressed the Court’s concerns with consistency by clarifying that this work-availability requirement applies to all qualifying reasons for FFCRA leave.  Thus, according to the DOL:

• FFCRA leave (both Paid Sick Leave for any qualifying reason and Expanded FMLA leave) may only be taken if the employee has work from which to take leave. In other words, an employee cannot take FFCRA leave if the employer would
  

Last week, the Department of Labor (“DOL”) published guidance (Q&A #s 98-100) on the impact of various school reopening plans on employees’ entitlement to leave under the Families First Coronavirus Response Act (“FFCRA”).  As anticipated, leave rights depend on the specific circumstances, with the key being whether the school is “closed” (not available for the child to attend in person):

• No In-Person Program: If the school is not offering any in-person instruction and instead is providing only remote learning (aka virtual learning; e-learning; distance learning) to students, then an employee will have a qualifying reason for leave.
• Hybrid Program: If the school is providing a hybrid program pursuant to which students are receiving in-person instruction on some days and doing remote learning on other days (such as alternating days or weeks in the classroom vs. at-home), then an employee will have a qualifying reason for leave but only on the days when in-person instruction is not available to their child.
• Choice Between In-Person or Remote Program: If the school provides families with a choice between an in-person program or a remote program, and the employee chooses the remote option, the employee will not have a qualifying reason for leave.  This is true regardless of the reason for the employee’s choice (e.g., choosing remote learning due to fear of exposure to COVID will not provide a qualifying reason for leave when in-person learning is available).

Importantly, even when the school is closed, an employee will still be

Employers’ efforts to comply with the Families First Coronavirus Response Act (“FFCRA”) were further complicated on Monday when the United States District Court for the Southern District of New York invalidated several key provisions of the Department of Labor’s (“DOL”) Final Rule (or regulations) interpreting the law.  Unfortunately, the Court’s holding creates a number of questions on key issues, including retroactivity and the applicability of the decision on a nationwide basis in light of the court’s failure to issue a nationwide injunction.  Further, the holding may not be final, because the DOL may appeal the ruling to the Court of Appeals for the Second Circuit.  At minimum, it appears likely that the DOL will issue revised Questions & Answers, and potentially revised regulations, in light of Monday’s ruling.

As we await further guidance from the DOL and/or the courts, employers should become familiar with the changed FFCRA landscape and consider how Monday’s ruling may impact their FFCRA policy and practices.  Below is a discussion of the four provisions that have been struck down, at least within the Southern District of New York.

Work-Availability

The FFCRA statutory language provides that employees are only entitled to leave if they are unable to work “because of” a COVID-19 qualifying reason.  The DOL interpreted this language to mean that employees are not entitled to FFCRA leave if their employer has no work available for them, even if the lack of work is the result of a government directive such as a closure or “stay-at-home”

As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e., employees who are at an increased risk for severe illness from COVID-19.  Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape.  As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

With all of the attention being given to COVID-19-related leave under the Families First Coronavirus Response Act (“FFCRA”), we mustn’t forget the (traditional) Family and Medical Leave Act (“FMLA”).  To remind us, the federal Department of Labor (“DOL”) recently issued new FMLA Q&A on COVID-19-related subjects.

COVID-19 Testing:  The DOL clarified that the FMLA’s “reinstatement” requirement does not interfere with an employer’s ability to require all employees to take a COVID-19 test before coming to the office.  (See Q&A #13.)  This is because employees who have taken FMLA leave are still subject to the same actions that would have applied to the employee had the employee not taken FMLA leave.

For BCLP discussions about what the federal Equal Employment Opportunity Commission (“EEOC”) has said about COVID-19 related testing, see this blog post on 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations and this one on EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations.

Telemedicine:  The DOL clarified that, until December 31, 2020, and in light of the current pandemic-related demands on health care providers and PPE/supplies, “telemedicine” visits will count as “in-person visits” for FMLA purposes.  (See Q&A #12.)  This decision is significant because one of the common categories of serious health condition under the FMLA – “incapacity plus treatment” – requires certain “in-person” visits to a health care provider.  According to the DOL, a telemedicine visit will constitute an in-person visit as long as

On July 20, as part of a barrage of new guidance relating to the Families First Coronavirus Response Act (“FFCRA”), Family and Medical Leave Act (“FMLA”), and Fair Labor Standards Act (“FLSA”), the federal Department of Labor (“DOL”) issued four new FFCRA Q&As relating to “return to work” issues.

Three of the new Q&As (95-97) explain the interconnection between FFCRA leave and furlough:

• Hours of FFCRA leave taken prior to furlough count against an employee’s total FFCRA leave entitlement (i.e., the fact that an employee took FFCRA leave and subsequently was furloughed does not mean that the employee’s FFCRA entitlement starts over upon return to work);
• Hours/weeks on furlough do not count against an employee’s FFCRA entitlement;
• Post-furlough requests for FFCRA leave should be treated as “new” requests for FFCRA leave (i.e., employees should be required to provide appropriate documentation in support of post-furlough leave requests); and
• Employers may not make furlough decisions (such as which employees to recall from furlough) based on a desire to avoid providing FFCRA leave.

The remaining new Q&A (94) relates to the “reinstatement” obligation under the FFCRA.  While recognizing that employees who take protected FFCRA leave are, generally, entitled to be restored to their same or equivalent position when returning from leave, the DOL clarifies that employers may take certain steps to reduce potential exposure of employees in the workplace.

Specifically, in regards to an employee who took Paid Sick Leave under the FFCRA to care for a family member who