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DOL Publishes Informal Guidance on the Families First Coronavirus Response Act

On March 24, 2020, the Department of Labor (“DOL”) released an initial set of Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave and emergency family and medical leave (“FMLA”) benefits to employees in connection with COVID-19.

The Q&A is the latest in a series of publications from the DOL and the Internal Revenue Service to shed light on the FFCRA.  Below are some highlights from this guidance for employers to consider as they prepare to comply with the FFCRA:

  • Effective Date: The FFCRA will become effective on April 1, 2020 and will expire on December 31, 2020.
  • Retroactivity: Benefits under the FFCRA are not retroactive.  Any leave provided to employees prior to April 1, 2020 will not count toward the employer’s leave obligations under the FFCRA, and cannot form the basis for payroll tax credits.
  • Employee Threshold Requirements Generally:
    • The 500-employee threshold is calculated based on the number of US employees an employer has as of the date the employee’s leave is requested.
    • The following types of employees should be included in an employer’s calculation: full-time employees, part-time employees, employees on leave, temporary employees who are jointly employed, and day laborers supplied by a temporary agency.
    • Independent contractors (as defined under the Fair Labor Standards Act [“FLSA”]) are

Families First Coronavirus Response Act: Emergency Family and Medical Leave Provisions (Part 2 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks of combined paid and unpaid leave).  This post is part 2 of 2 summarizing the requirements of the FFCRA and focuses on Emergency Family and Medical Leave.

  • Scope: Unlike the paid sick leave provisions of the FFCRA, the emergency family and medical leave provisions are not standalone law.  Rather, these provisions amend the Family and Medical Leave Act (“FMLA”), thus providing for “Emergency FMLA” leave.  However, the amendments (such as the changed definition of Covered Employer and Eligible Employee) apply only to Emergency FMLA provisions and do not amend the pre-existing provisions of the FMLA.
  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Covered Employer: Anyone who has fewer than 500 employees[1] and otherwise satisfies the elements of the definition of “Employer” under the FMLA.[2]
    • EXCEPTIONS:
      • DOL may issue guidance excluding employers with fewer than 50 employees from the requirement to provide Emergency FMLA, if the Emergency FMLA would “jeopardize the viability of the business as a going concern.”
      • Regardless of whether such guidance is issued, employers with fewer than 50 employees will not be subject to an FMLA action by employees for failing to provide

Families First Coronavirus Response Act: Paid Sick Leave Provisions (Part 1 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks with a combination of paid and unpaid leave).  This post is part 1 of 2 summarizing the requirements of the FFCRA and focuses on Paid Sick Leave. 

  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Department of Labor (“DOL”) Obligations: Must issue a “Model Notice” for employers to post within 7 days of enactment and guidance within 15 days of enactment.
  • Covered Employer – Anyone engaged in commerce with fewer than 500 employees,[1] as defined under the Fair Labor Standards Act (“FLSA”).
    • EXCEPTION – The DOL may issue guidance excluding employers with fewer than 50 employees from the paid leave requirements of the Act if the paid sick leave would “jeopardize the viability of the business as a going concern.”
  • Eligible Employees – All employees (as defined under the FLSA), regardless of length of employment, and regardless of whether full-time or part-time.
    • EXCEPTION: If an employee is a healthcare provider or an emergency responder, the employer may choose not to provide paid sick leave to those employees.  (The DOL may issue guidance on this point.)
  • Affirmative Requirements for Employers under the Act:

COVID-19: FMLA Reminders and Recommendations

March 18, 2020

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As employers navigate the implications of COVID-19 and the workplace, one of the subjects to keep in mind is the federal Family and Medical Leave Act (FMLA).  Employers should be aware that currently pending legislation would temporarily amend the FMLA to, among other things, change the scope of the employers covered by the FMLA (with respect to the new provisions), expand eligibility in certain respects, and provide certain paid leave obligations in light of the novel coronavirus (COVID-19).  If that legislation becomes law, employers are encouraged to consult legal counsel to assess what, if any, new obligations they may have.

In the meantime, this post is intended to provide employers with reminders and recommendations for complying with the current version of the FMLA. In addition to reviewing this post, employers should review the FMLA guidance issued recently by the U.S. Department of Labor (DOL):  https://www.dol.gov/agencies/whd/fmla/pandemic.

Eligibility:  Resist the urge to make FMLA available for everyone regardless of eligibility status.

  • While making FMLA leave available to all may seem generous, the DOL has emphasized that it is not permissible to count leave against an employee’s 12-week FMLA entitlement if the employee is not yet eligible for leave (i.e., has not worked for the employer for 12 months, has not worked 1,250 hours in the 12 months before the leave is to begin, or does not work at a location with 50 employees in a 75 mile radius).
  • Rather than providing “FMLA leave” to an employee who is not yet

Preparation and Training Critical as Illinois Employers Face New Legal Landscape

Illinois employers must begin preparing now for the host of new legal requirements impacting the workplace beginning in 2020.  With legal changes on topics ranging from hiring practices and pay equity to drug testing and severance agreements, employers should not only review and revise their policies, practices and expectations, but also ensure that their Human Resources and management personnel receive training to ensure compliance.

Amendments to the Illinois Human Rights Act (“IHRA”)

Under new amendments to the IHRA, more employers are now subject to the IHRA, more protections are now provided to employees (and others), sexual harassment training is now a requirement, and employers now have reporting obligations to the Illinois Department of Human Rights (“IDHR”) regarding adverse judgments, administrative rulings, and settlements.  Specifically:

  • Beginning July 1, 2020, rather than applying only to employers with 15 or more employees, the IHRA applies to all employers with one or more employees in Illinois during 20 or more calendar weeks. Newly covered employers should ensure that HR personnel and managers are aware of the areas in which the IHRA is broader than federal anti-discrimination laws, including but not limited to: (1) pregnancy accommodation requirements; (2) prohibition of discrimination based on sexual orientation, gender identity, military status, marital status, and order-of-protection status; and (3) the potential for individual liability of harassers.
  • Beginning January 1, 2020, the scope of protection provided by the IHRA will expand. HR personnel and managers must be aware of the new protections so that they appropriately recognize and respond to concerns. 

When Employee’s Trip to the Beach May NOT Support A Suspicion of FMLA Fraud

Employers are not obligated to tolerate employee misuse of FMLA leave.  Examples abound in which an employer learns – often through an employee’s social media posts or through information from an employee’s co-workers – that an employee on intermittent FMLA leave has been having a good time while absent from work, such as taking a trip to the beach (or Las Vegas, Cancun, ….), playing golf, going fishing, etc.  In those situations, when an employer takes action to discipline or terminate the employee after conducting a reasonable investigation and reaching an honest belief of FMLA fraud, the employer will often successfully defeat a resulting FMLA retaliation claim (and, often an FMLA interference claim as well).

The case of Meyer v. Town of Wake Forest, No. 5:16-CV-348-FL, 2018 WL 4689447 (E.D. N.C. Sept. 28, 2018), however, provides an example of when an employee going to the beach during FMLA leave may not provide good grounds for an “honest belief” of FMLA fraud.  In Meyer, the employee was approved for intermittent FMLA leave both to care for his wife who was recovering from childbirth and to bond with his newborn son.  A co-worker reported to the employer that, while on approved FMLA leave, the employee had been to the beach with his family, and that he also planned to go with them to the state fair.  Based on the employee’s subsequent admission that he had engaged in these activities and that he had recorded his time as sick time under the employer’s

DOL: Employers May Not Delay FMLA Designation, Even at Employee’s Request

It is not uncommon for employees to ask whether they can first use paid time off available under the employer’s leave policies and “save” their unpaid – and protected – Family and Medical Leave Act (FMLA) leave entitlement until later, in the event that they need additional leave.  Some employers permit this approach, perhaps out of a desire to be “generous” to employees with respect to leave, or sometimes inadvertently due to not realizing that paid leave and unpaid FMLA leave can run concurrently, or even because of a failure to recognize at the beginning of an employee’s leave that the FMLA applies.

In an opinion letter issued on March 14, 2019, the U.S. Department of Labor (DOL) took a firm stand against this practice, stating unequivocally that “the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”  See FMLA2019-1-A.

In reaching this conclusion, the DOL relied heavily on the FMLA regulation precluding the waiver of FMLA rights, see 29 C.F.R. § 825.220(d), stating that, in light of the prohibition on such waivers, neither the employee nor the employer “may decline FMLA protection” for FMLA-qualifying leave.  The DOL also noted that delaying FMLA leave until after paid leave is exhausted would run afoul of the regulation that requires employers to provide the FMLA designation notice within five business days of having sufficient information to determine that leave is for an FMLA-qualifying reason.  See 29 C.F.R. § 825.300(d)(1).

Although

Practical Tips to Address Implicit Bias in the Workplace

Over the past half century, employers have made great strides in protecting employees and applicants from conscious bias on the basis of race, gender, age and other protected characteristics.  But what about unconscious – or “implicit” – bias?

What is “Implicit Bias”?

Implicit bias refers to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”  See http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/ .

Each of us has implicit biases, formed based on our experiences and exposures from a variety of sources over time.

What are the Implications of Implicit Bias for the Workplace?

By their nature, implicit biases may cause decision-makers to unconsciously form opinions – and make employment decisions – about applicants and employees in a manner that has a negative effect based on protected characteristics such as race, gender, and age.

Some studies have shown, for example, that when reviewers were given copies of a memorandum with identical errors, but some reviewers were told the writer was African-American and others were told the writer was Caucasian, the average score on a scale from 1 to 5 was nearly a point higher for the Caucasian writer, and the Caucasian writer was described as having “potential” while the African American writer was called “sloppy.”  See http://nextions.com/wp-content/uploads/2017/05/written-in-black-and-white-yellow-paper-series.pdf.

What can Employers do about Implicit Bias?

Unfortunately, implicit biases operate at a subconscious level.  As a result, our implicit biases may run counter to what we consciously believe.  This can make it difficult for decision-makers to realize that their decisions

Does An Employer Have FMLA Obligations Even Before An Employee Satisfies the Eligibility Requirements For Taking FMLA Leave?

November 26, 2018

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In a word: Yes.  In fact, there are many.

The most notable obligation under the Family and Medical Leave Act – the obligation to provide protected leave for a qualifying reason – does not apply until the employee has become eligible for leave under the Act.  However, many other obligations apply even before an employee becomes FMLA-eligible:

  • Employers may not manipulate the size of a worksite or the number of work hours available to an employee in order to avoid employee eligibility for FMLA leave.
  • Employers may not induce an employee to waive prospective rights under the FMLA, such as inducing a pre-eligible employee to waive the right to take leave once the employee becomes eligible in exchange for some other employer-provided benefit.
  • Employers must not retaliate against an employee who, before becoming eligible for FMLA leave, requests leave that will begin after eligibility is achieved. See Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269 (11th Jan. 10, 2012) (holding that the FMLA prohibits an employer from harassing, criticizing the performance of, and terminating an employee in response to a pre-eligibility request for post-eligibility leave, because to hold otherwise would create “a loophole . . . whereby an employer has total freedom to terminate an employee before she can ever become eligible.  Such a situation is contrary to the basic concept of the FMLA”).
  • Employers must give accurate information to an employee about whether the employee is eligible for leave. When an employee is given inaccurate information

Tips for Handbook Review

November 5, 2018

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Tips for Handbook Review

November 5, 2018

Authored by: Christy Phanthavong

It’s that time of year when human resources departments turn their attention to reviewing and updating their employee handbooks for the upcoming year.  Below are some things to consider when updating your handbook:

  • Updates to federal laws – Have any applicable federal laws or regulations been changed, or any court or agency opinions issued that impact your policies?
  • Updates to state or local laws – Similarly, have any applicable state laws or regulations been changed?
  • State law addenda – Does a “one-size fits all” handbook work for your company, or does your company footprint require state law addenda? Has your company recently expanded into new locations?
  • Keeping up with the times – Unfortunately, policies relating to safety, security, emergency plans, emergency contact information, etc. are becoming increasingly necessary and important.
  • Introduction – Does your statement describing your company, its history and philosophy, etc. need refreshing or updating?
  • Policies v. Practices – Is your handbook keeping up with your actual practices?
  • Cross-references – Are there new and separate company policies (e.g., Code of Conduct; global policies) that should be cross-referenced in the handbook?
  • Consistency with separate policies – Do you have separate policies (such as a stand-alone reaffirmation of a policy against harassment, or local facility policies that are separate from a corporate handbook) that are similar or related to policies in the handbook, and if so, is the language consistent?
  • Phone numbers, names, titles, third party administrators – If specific information regarding these and similar subjects is provided in
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