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For the New Year, Colorado Makes COVID-19 the Gift That Keeps Giving (Paid Time Off)

On the night before Christmas Eve, the Colorado Department of Labor and Employment (CDLE) issued a surprise opinion that Colorado employers are required to provide still more paid sick leave for COVID-19 in 2021.  In its Interpretive Notice & Formal Opinion #6C (INFO #6C), CDLE opined that all Colorado employers would be required, as of January 1, 2021, to grant employees up to 80 more hours of paid sick leave for COVID-related absences pursuant to the Healthy Families and Workplaces Act (HFWA).  INFO #6C can be found here.

Background:

  • In response to COVID-19, Section 406 of the HFWA required all Colorado employers, in 2020, to provide the Emergency Paid Sick Leave described in the federal Families First Coronavirus Response Act (FFCRA), without regard to the coverage provisions of the FFCRA. As a result, in 2020, Colorado employers of all sizes were required to provide up to 80 hours of paid sick leave for certain COVID-related absences described in the FFCRA.  That requirement under Section 406 expired with 2020.
  • To address possible future pandemics, the Colorado General Assembly also included Section 405 in the HFWA. Under Section 405, “on the date a public health emergency is declared, each employer in the state shall supplement each employee’s accrued paid sick leave as necessary to ensure that an employee may take” up to 80 additional hours of paid sick leave for an expanded list of authorized absences.  That requirement was commonly understood to apply if a new public health emergency were

US COVID-19: New COVID Relief Bill (including FFCRA Tax Credit Amendments) Becomes Law

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

US COVID-19: New COVID Relief Bill Extends Certain FFCRA Tax Credits, But Does Not Mandate Extension of Leave Benefits

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

US COVID-19: FFCRA Entitlements Expire On December 31

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

California Passes COVID-19 Supplemental Paid Sick Leave Law

On September 9, California Governor Newsom signed a bill that establishes COVID-19 supplemental paid sick leave (“COVID-19 PSL”) for California workers generally not covered by the federal Families First Coronavirus Response Act (“FFCRA”).

Important Dates

Employers are required to begin providing COVID-19 PSL by September 19.

Employers must also post a notice in their workplace by September 19.  If employees are not physically present in the workplace, the employer may disseminate the notice electronically.

Starting in the first pay period after September 9, employers must provide notice in a wage statement (or a separate writing provided on pay day) of an employee’s available COVID-19 PSL each pay period.

The requirement to provide COVID-19 PSL expires on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.

Covered Employers & Employees

California’s new law applies to private employers with 500 or more employees in the United States.  It also applies to any public or private entity that employs health care providers or emergency responders and that has elected to exclude such employees from emergency paid sick leave under the FFCRA.

Workers are entitled to COVID-19 PSL only if they are (1) employed by a covered employer AND (2) leave home to perform work for their employer.

Reasons for Leave

Employees are entitled to COVID-19 PSL when they are unable to work because they:

  • are subject to a federal, state, or local quarantine or isolation order related

U.S. COVID-19: DOL Issues FFCRA Guidance Regarding School Reopening Plans

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

US COVID-19: Remember the FMLA: DOL Issues New Q&A on COVID-related FMLA Issues

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

New FMLA Forms Available From DOL

First, the bad news:  As if HR personnel who are responsible for managing leave requests aren’t already stretched thin due to COVID-19 issues, they now have another item for their to do list:  Become familiar with, and begin using, new Family and Medical Leave Act (“FMLA”) forms issued late last week by the federal Department of Labor (“DOL”).

Now, the good news:  Overall, despite being longer and wordier, the new FMLA forms appear likely to be embraced by employers, employees, and medical providers alike for being more clear, helpful, and user-friendly than prior versions.

The new FMLA forms are available on the DOL’s website.  They include revised versions of the following forms:

  • Combined Eligibility Notice / Notice of Rights and Responsibilities (WH-381);
  • Designation Notice (WH-382);
  • Certification of Health Care Provider (one for employee’s own serious health condition; one for leave relating to care of a covered family member; WH-380 E and WH-380 F);
  • Certification of Military Family Leave (including forms relating to Qualifying Exigency leave and leave relating to a Current Servicemember or Veteran; WH-384 and WH-385/WH-385-V).

One overarching revision is that each form now includes more “explanatory” language relating to FMLA rights and obligations.  For example, the Eligibility Notice includes a description of the eligibility rules and definitions of such key terms as “spouse,” “child” and “parent.”  The Rights and Responsibilities Notice (which, as before, is combined with the Eligibility Notice) includes expanded explanations regarding the substitution of paid

U.S. COVID-19: New FFCRA Q&A – Key Takeaways Regarding the “Need” for Leave, Joint Employers and Domestic Workers

The federal Department of Labor (“DOL”) is closing in on 100 informal “questions and answers” (the “Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”), having issued Q&A #s 89-93.  The new Q&A address steps employers may take when determining whether employees truly “need” FFCRA leave; issues relating to domestic workers; and a reminder for joint employers that prohibitions on adverse action, interference and retaliation may apply even to employers who are not covered by the FFCRA.

Determining Whether Employees Have A Qualifying Reason For Leave

Three of the five new Q&A provide critical guidance for employers on permissible questions and documentation requirements to ensure that leave is being taken in appropriate circumstances.

In the first Q&A (# 91), the DOL posits a factual scenario in which an employee with children has been teleworking productively for several weeks despite school closings, but then requests FFCRA leave.  The hypothetical employer wonders:  Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?”  The DOL responds affirmatively, indicating that an employee may be asked “to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work.”

Employers should “exercise caution” in this area, however, because, according to the DOL, the more questions asked, the greater “the likelihood that any decision denying leave based on that information is a prohibited act.”  There are many reasons why an employee may not have initially

U.S. COVID-19: As the FFCRA Goes Live, the DOL Continues to Publish Revised and New Guidance for Employers

Although the federal Department of Labor (“DOL”) declared April 1 – 17 to be a temporary period of non-enforcement of the Families First Coronavirus Response Act (“FFCRA”), the DOL was far from idle during that period.  To the contrary, the DOL hosted an FFCRA webinar, published versions of the required FFCRA poster in additional languages, and actively encouraged employers and employees to become familiar with the FFCRA through posts on social media.  Importantly, the DOL also provided key revised and new guidance for employers by: (1) issuing technical corrections to the temporary rule; and (2) posting additional informal questions and answers (the “Q&A”).

As described below, this new guidance provides much-needed clarity on key issues, especially since the period of non-enforcement is now over.

Interplay Between the FFCRA and Employer Paid Leave Policies

Although the rules remain complicated and not entirely clear, there is now more information regarding whether and when an employee may choose, or an employer may require, leave under an employer’s existing paid leave policies to be used before, concurrently with, or as a supplement to, the use of leave under the Paid Sick Leave (“PSL”) and Emergency FMLA (“EFMLA”) provisions of the FFCRA.

In this context, “concurrently” means “to cover the same hours as.”  In other words, to the extent various types of leave run concurrently, then the employee’s leave entitlement is used / reduced under both types of leave at the same time.  “Supplement” means that paid leave under an employer’s

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