In Depth
- The FFCRA remains in effect through December 31, 2020, for employers with up to 500 employees. Under the FFCRA there are two types of leave—Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA). EPSL provides up to 80 hours of paid leave in addition to any leave available under federal, state or local law. EFMLA provides up to 12 weeks of leave, depending on how much 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:
1. Employee is subject to a quarantine or isolation order
2. Employee is advised by healthcare provider to self-quarantine
3. Employee is experiencing COVID-19 symptoms and seeking medical diagnosis
4. Employee is caring for an individual described in 1 or 2 above
5. Employee is experiencing a substantially similar medical condition
6. Employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19.
- Several states have enacted laws providing paid sick leave to employees not covered by the FFCRA, generally for employers with 500+ employees. The California COVID-19 Supplemental Paid Sick Leave Act is one such example, which is explained in depth in McDermott’s recent insight, California COVID-19 Supplemental Paid Sick Leave Act (AB 1867): Paid Leave, Notice and Posting Requirements Effective Immediately.
- The Department of Labor (DOL) recently revised rules regarding the FFCRA, specifically the employer option to exclude “health care providers” from FFCRA benefits. On September 11, 2020, the DOL modified its prior rule in several areas, including narrowing its definition of “health care provider” whom an employer may exclude from being eligible for FFCRA leave. More information on the revised definition and the impact on employers can be read in our recent insight here.
- For employees who are eligible for childcare leave under the FFCRA, the employee 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 related to COVID-19. A school is 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, then traditional FMLA leave or EPSL may apply. In addition, intermittent leave under 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 privacy considerations; meal break compliance; tax implications if the employee teleworks out of state/moves; and predictive scheduling laws. All leave/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 an employee’s 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 work hours, alternative work schedules or collaborative working to provide flexibility for employees with childcare responsibilities. Other options may include unpaid leave or subsidized childcare costs, which can help retain quality employees and eliminate employee turnover costs.
