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14 October 2020
FFCRA and employers with up to 500 employees
State-specific laws for employers with more than 500 employees
Employer option to exclude healthcare provides from FFCRA benefits
What employers should consider before responding to requests
Practical aspects of requests
As students begin a new school year, US employers face a new challenge – employee leave and accommodation requests. With widespread remote learning and evolving legal obligations to provide paid leave to working parents, employers must navigate unique staffing challenges while complying with the Families First Coronavirus Response Act (FFCRA) and other state and local leave laws. This article outlines some of the current leave requirements regarding childcare obligations and practical solutions to navigate these uncharted waters.(1)
The FFCRA remains in effect through 31 December 2020 for employers with up to 500 employees. Under the FFCRA, there are two types of leave:
EPSL provides up to 80 hours' paid leave in addition to any leave available under federal, state or local law. EFMLA provides up to 12 weeks' leave, depending on how much Family and Medical Leave Act (FMLA) leave the employee has already used during the employer's 12-month measurement period. There are six qualifying reasons for leave under the FFCRA – namely, the employee:
Several states have enacted laws providing paid sick leave to employees not covered by the FFCRA, generally for employers with more than 500 employees. The California COVID-19 Supplemental Paid Sick Leave Act is one such example (for further details please see "California COVID-19 Supplemental Paid Sick Leave Act effective immediately").
The Department of Labour (DOL) recently revised rules regarding the FFCRA, specifically the employer option to exclude healthcare providers from FFCRA benefits. On 11 September 2020 the DOL modified its prior rule in several areas, including narrowing its definition of 'healthcare providers' which employers may exclude from being eligible for FFCRA leave.(2)
Employees who are eligible for childcare leave under the FFCRA may use either EPSL or EFMLA if they are unable to work or telework due to the need to care for a child whose school or place of care is closed for reasons relating to COVID-19. Schools are considered 'closed' if they offer virtual learning only or, in some cases, a hybrid learning model (in-person and virtual). If a parent opts for virtual learning and the school district is open for full-time in-person learning, the school is not considered closed. If the child has an underlying medical condition, traditional FMLA leave or EPSL may apply. In addition, intermittent leave under the FFCRA requires employer approval. For example, if a child attends in-person classes for half of each school day, and the employee takes FFCRA leave to care for the child during the half-days in which the child is not attending classes, this is considered intermittent leave that requires approval.
There are a number of legal issues to consider when granting an employee leave or accommodating a telework request for childcare, including:
All leave and telework decisions should be handled through one person or a single department to ensure consistency and that all decisions are made in a fair, non-discriminatory manner. Tracking charts may be helpful to ensure fair and justified decisions but may also be discoverable in litigation. Employers should consider ways to maintain privilege and confidentiality by working with the legal department as part of the decision-making process.
Employers should also consider the practical aspects of employees who request childcare-related leave or teleworking. Preparing a telework agreement can ensure mutual understanding of employees' duties and hours when working remotely. All schedule and intermittent leave arrangements should be documented, along with performance expectations and issues. Employers should strive to create an understanding but professional atmosphere during this time, and may want to offer flexible working hours, alternative work schedules or collaborative working to provide flexibility for employees with childcare responsibilities. Other options may include unpaid leave or subsidised childcare costs, which can help to retain quality employees and eliminate employee turnover costs.
For further information on this topic please contact Lindsay Ditlow at McDermott Will & Emery's New York office by telephone (+1 212 547 5400) or email (firstname.lastname@example.org). Alternatively, contact Pankit Doshi or Lauren Ziegler at McDermott Will & Emery's San Francisco office by telephone (+1 628 218 3800) or email (email@example.com or firstname.lastname@example.org). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) This article is based on a recent webinar, available here.
(2) For further information please see "Healthcare employers: what you need to know about the new FFCRA "health care provider" exclusion and California COVID-19 supplemental paid sick leave".
Michael J Sheehan, partner, assisted in the preparation of this article.
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