The Families First Coronavirus Response Act (“FFCRA“) generally requires U.S. employers with fewer than 500 employees (“Small Employers”) to provide paid sick leave and additional FMLA benefits to their employees.[1] You can read our summary of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act here and here, respectively.

In order to offset some of the costs these provisions impose on Small Employers, the FFCRA also provides a quarterly payroll tax credit equal to 100% of the qualified sick and leave wages paid to employees under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

The amount of leave wages taken into account is limited with respect to each individual employee for purposes of the credit.

• For sick leave wages paid due to an employee’s illness or quarantine, the amount of wages taken into account for purposes of the credit is capped at $511 per day and $5,110 in the aggregate for each employee; and
• For sick leave wages paid due to an employee’s need to care for others or care for the employee’s child(ren) due to school closures[2], the amount of wages taken into account for purposes of the credit is capped is $200 per day and $2,000 in the aggregate for each employee. Sick leave wages under the FFCRA are available for a maximum of 2 weeks (10 days).

The following blog post was authored by our colleagues, Lily Kurland and Christy Phanthavong, and published on the BCLP At Work blog, where there have been ongoing labor and employment updates in response to the COVID-19 pandemic.

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
      

The following blog post was authored by our colleagues, Lily Kurland and Christy Phanthavong, and published on the BCLP At Work blog, where there have been ongoing labor and employment updates in response to the COVID-19 pandemic.

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
  

As the Coronavirus has continued to spread, there has been guidance from various entities on a myriad of topics pertaining to employee benefits. Summaries and links to such guidance can be found below. This information will be updated regularly as more guidance becomes available.

The Health Insurance Portability and Accountability Act (HIPAA): The Office for Civil Rights, a division of the U.S. Department of Health and Human Services, published a bulletin outlining privacy of protected health information and when covered entities may disclose such information without a patient’s authorization. Covered entities may be able to disclose needed protected health information without individual authorization to public health authorities, to persons at risk of contracting or spreading a disease, or to prevent a serious and imminent threat, among other limited circumstances. Covered entities must make reasonable efforts to limit the information disclosed to that which is the minimum necessary to accomplish the purpose. In a prior post, we provided a review of the bulletin and ongoing HIPAA obligations for covered entities.

The Family and Medical Leave Act (FMLA): The U.S. Department of Labor released a Q&A addressing various questions about employee rights and employer responsibilities under the FMLA. Eligible employees are typically entitled to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month period due to their own illness or that of a family member. Covered employers must continue to abide by federal FMLA laws as well

Bryan Cave has launched a new blog focusing on labor and employment issues called Bryan Cave At Work (www.bcatwork.com).  Since labor & employment is a “neighbor” discipline to benefits, we will post links to some of their content from time to time that we think is relevant.  As one example, we expect to share FMLA content since, prior to BC @ Work’s launch, FMLA issues were covered on this blog.  Below is a link to an article that recently appeared on the BC @ Work blog:

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers.  To see the rest of the post, click here.

By now, you’re likely aware (and if you’re not, you should be) that, in April, the U.S. Department of Labor (“DOL”)issued a new “Employee Rights Under The Family And Medical Leave Act” poster, to replace the prior poster on this subject.

The DOL has made clear that the old poster (revised Feb. 2013) is still sufficient – until further notice – to meet the posting requirement under the FMLA regulations. Thus, you’ve probably already given some thought as to whether and when to proceed with updating your posters.

As you consider this step, however, have you also considered whether the new poster impacts your policy?

The FMLA regulations provide that, if an FMLA-covered employer has any FMLA-eligible employees, and if the employer has a written policy on the subject of leave/benefits, then the employer must ensure that its policy contains the same information that is in the FMLA poster. (The notice requirements are discussed at pp. 12-13 of the helpful new publication from the DOL, “The Employer’s Guide to The Family and Medical Leave Act”.)

Accordingly, now is a good time to review your FMLA policy to ensure that it contains all of the information that is in the new poster. Of course, it is to your benefit to include additional provisions in your policy, such as a prohibition on the misuse of FMLA leave. But at a minimum, all of the information that is in the poster must be included.

Note that “all”

This last post in our three-part series on managing FMLA fraud is about how negative commentary – including emails with smiley face emoticons – can subvert an effort to show that a termination decision was based on an honest belief that the employee was misusing FMLA leave. (The first two posts in our series are available here and here.)

The case of Apatoff v. Munich Re Am. Servs., No. 11-7570, 2014 U.S. Dist. LEXIS 106665 (D.N.J. Aug. 1, 2014), involved an employee who took extended FMLA leave for asthma. Over the holidays, video surveillance showed the employee shopping on more than one occasion and carrying boxes as she moved into a new home. Based on this evidence, she was terminated for abusing FMLA leave.

During the ensuing litigation, the employee provided evidence that her physician had instructed her to engage in exercise and stay active, and had told her to remain on leave to determine whether airborne material in the workplace triggered her asthma. In its summary judgment motion, the employer argued that, even though it may have been mistaken, the employee’s FMLA retaliation claim should fail because the employer honestly believed the employee was misusing her leave.

The court rejected this argument, noting that the employer had failed to obtain information about the parameters of the employee’s medical

On January 20, 2016, the federal Department of Labor (“DOL”) issued guidelines to employers on the subject of “joint employment.” Most of the buzz regarding the DOL’s publications centers around the new “Administrator’s Interpretation” of joint employment under the Fair Labor Standards Act (“FLSA”) and the resulting implications for joint liability under federal wage-and-hour laws.

However, the DOL didn’t stop with the FLSA. Instead, the DOL also issued a new “Fact Sheet”, Fact Sheet #28N, addressing joint employment principles under the Family and Medical Leave Act (“FMLA”).

Joint employment exists when an employee is employed by two or more employers, such that both employers have responsibilities under the FMLA. Fact Sheet #28N does not provide a detailed discussion of when joint employment will be found to exist for FMLA purposes, noting instead that the analysis is the same under the FMLA as under the FLSA. Importantly, however, Fact Sheet #28N provides a “staffing company” example, thereby reminding employers that joint employment will often be found to exist when a staffing company places employees at client sites.

In a joint employment situation under the FMLA, it is necessary to identify which employer is the “primary” employer and which employer is the “secondary” employer. Fact Sheet #28N discusses the factors that will be considered in this analysis, including:

• who has authority to hire and fire, and to place or assign work the employee;
• who decides how, when and the amount that the employee is paid;
  

Continuing our three-part series on managing FMLA fraud (see our initial post here), this post addresses the importance of conducting a reasonable investigation, prior to taking adverse action, to develop a supportable “honest belief” of FMLA fraud.

The case of Hosler v. Fulkroad, No. 13-cv-1153, 2015 U.S. Dist. LEXIS 80801 (M.D. Penn. June 23, 2015), provides an excellent example of this principle. The employee requested leave for surgery and recovery, and submitted a doctor’s note in support of the request. The employer purportedly doubted the need for leave and terminated the employee while she was out.

Not only did the jury find in favor of the employee on her FMLA interference claim, but the court awarded liquidated damages, finding no credible evidence that the employer had a reasonable, good faith basis for its interference with the employee’s FMLA rights.

The court pointed out that the employer could not provide any factual basis for his personal opinion that the doctor’s note was fraudulent. Indeed, despite supposedly believing that the note did not come from the doctor’s office and that someone had forged the doctor’s signature, the employer failed to make any kind of reasonable inquiry with either the employee or her doctor concerning the validity of the note. Thus, the court imposed “significant consequences” for the employer’s “arbitrary, erroneous, subjective, and uninformed” action.

The importance of asking questions was also demonstrated in

This post is the first in a three-part series of posts on managing FMLA fraud with tips from recent cases. In Alexander v. Bd. of Educ. of City Sch. Dist., No. 14 Civ. 8553, 2015 WL 2330126 (S.D.N.Y. May 14, 2015), for example, the court provided guidance on how FMLA policies can help support a termination decision when an employee misuses FMLA leave.

The employee in Alexander told her employer she needed intermittent FMLA leave to take her child to physical therapy appointments. Her request was approved after a doctor’s note confirmed the need for leave. Subsequently, the child refused to attend the appointments. Rather than update her employer about the situation, however, the employee attended classes while on leave during the scheduled appointment times. Trouble arose for the employee when she submitted a tuition reimbursement request for the course, and her employment was terminated for abuse of FMLA leave after she admitted these facts during the employer’s investigation.

Summary judgment for the employer on the employee’s FMLA retaliation claim – the obvious result – was granted. In doing so, the court rejected the employee’s argument that the motivation for her termination could not have been her abuse of FMLA leave, because she was “never advised that she had to apprise her employer of the need to terminate her FMLA intermittent leave” when she no longer planned to attend the physical therapy appointments.