DOL Issues Revised FFCRA Regulations

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division posted revised regulations to clarify certain rights and responsibilities under the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”). DOL’s actions are in direct response to an August 2020 New York Federal District Court ruling that invalidated parts of prior FFCRA regulations. The revised regulations will become effective September 16, 2020, when they are published in the Federal Register.

Key portions of the revised regulations provide the following:

  • An employee is only entitled to Paid Sick Leave (“PSL”) and Expanded Family and Medical Leave (“EFML”) under FFCRA if the employer would otherwise have work available for that employee to perform. If there is no work available due to circumstances other than a qualifying reason for the leave, i.e. the employer has laid off or furloughed employees, or has temporarily or permanently closed the worksite, then an employee is not entitled to FFCRA leave. This “available work” requirement applies to all qualifying reasons for FFCRA leaves.
  • An employee must obtain employer approval to take intermittent FFCRA leave for any qualifying reason, regardless of whether the employee is teleworking or working on-site. Intermittent leave occurs when the employee takes leave in separate blocks of time due to a single qualifying reason. For an employee working on-site, many of the qualifying reasons for EPSL leave will not lend themselves to intermittent leave because they create a high risk of spreading the virus. Of note, the revised regulations clarify that the employer-approval requirement does not apply to employees who take FFCRA leave in full-day increments to care for children whose schools are operating on an alternate day (or other hybrid attendance) basis because such leave is not intermittent. In that scenario, where a school is physically closed to the employee’s child on particular days, each day of the school closure constitutes a separate reason for FFCRA leave. Thus, the employee may take leave due to the school closure until that qualifying reason ends (i.e. the school re-opens) and then take leave again when the new qualifying reason begins (i.e. the school closes again) – without the approval of the employer.
  • The definition of a “health care provider,” who may be exempted from FFCRA’s leave provisions, includes only those who meet the definition of that term under the FMLA regulations and those who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees must provide required documentation to support FFCRA leaves to their employers as soon as practicable, but they need not provide it prior to taking PSL or EFML. Similarly, an employee must provide advance notice of EFML as soon as practicable. If the need for that leave is foreseeable, the employee should provide notice before taking the leave.

Your partners at Lake Effect HR & Law are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Engaging & Retaining Employees, While Navigating FFCRA & FLSA

Five months after quickly transitioning to a “temporary” virtual workplace, many employees are still working at home. They are also managing caregiving and work responsibilities, as well as their own physical and emotional wellbeing. Employers are now struggling with how to adapt short-term fixes into sustainable, longer- term solutions that will engage and retain a virtual workforce.

In the face of this challenge, consider incorporating the following practices into your workplace culture to support your employees’ wellbeing and fulfill your organization’s mission and strategic initiatives.

  • Maintain flexible scheduling. As home and work priorities shift, employees may be more productive and focused during non-traditional business hours or blocks of time during the day, including evenings and weekends. When team members work different hours, encourage them to communicate and be transparent about their schedules. This will promote a productive workflow and strengthen working relationships.
  • Continue virtual work. If your team has proven they can be successful working virtually, continue to provide this flexibility. This may give those employees who need or want to work from another location an opportunity to spend the summer at their cabin, rent a VRBO, or stay with out-of-town family or friends for an extended time.
  • Welcome the interruptions. Intentionally or inadvertently, we have met (or heard in the background) our coworkers’ furry friends, kids, family, and roommates. We’ve had an opportunity to visit our coworkers’ homes through the lens of our computer cameras during video conferences. Rather than begrudging the interruption, welcome this opportunity to get to know one other as individuals, not just coworkers.
  • Encourage employees to collaborate on pod learning and/or caregiving responsibilities. As many school districts have decided on some version of virtual learning, employees may want the opportunity to work together to create pod learning or shared childcare. Connecting employees in this manner may provide them an opportunity to work alternate days or times. In addition, consider converting unused conference rooms to temporary classrooms or playrooms, just be sure to check with your worker’s compensation carrier.
  • Promote wellness benefits and other wellbeing resources. Work closely with your benefits broker, understand your current organization’s wellness benefits, and educate your employees on these offerings. During your annual renewal, consider additional, lower cost, but high health reward benefits to better support the wellness needs of your staff. These benefits may include an employee assistance plan (EAP) or subscription services to wellness apps, online yoga classes, coffee clubs, or other services that support wellness activities for your entire employee population, even those who do not participate in your health, dental, and vision plans. Focus as well on virtual activities your employees can engage in together, such as company-wide or departmental fitness or step per day goals.
  • Encourage use of paid time off. We might not be planning our once-in-a-lifetime vacation this year, but there are many adventures awaiting us locally. Remind employees of their PTO balance and encourage them to take time to recharge, this may include helping them efficiently tackle their work tasks so they can enjoy the time away. Add some fun and promote their time away by sharing pictures of their adventures on an internal shared site.
  • Support your wellness/social committee. A wellness committee is usually made up of a group of employees that are passionate about wellness and engaging their coworkers in some office fun. This group may be able to plan virtual celebrations, arrange for group wellness activities, or delivery company branded gifts to employees’ homes, like customized face masks and small hand sanitizers! Include gift certificates to encourage employees to support local restaurants and shops.
  • Review processes and procedures. Update processes and procedures to be more efficient and relevant in your current work environment. Review expense reimbursement procedures to determine if you should start reimbursing for employees’ virtual expenses, such as cell phone, internet, hotspot, or office supplies/equipment.
  • Evaluate leaders’ job duties and responsibilities. In addition to leading people, leaders have their own job responsibilities and deadlines to meet. Provide leaders more time to lead during these uncertain times by transferring job duties that may provide others a growth opportunity. You may find that after updating processes and procedures to be more efficient, employees may have more capacity and would welcome to learn a new skill.
  • Continue coaching and development efforts. Employees want and need frequent feedback and recognition, especially during times of change and uncertainty. Consider adapting your process to better suit your current workplace situation to ensure supervisors are frequently communicating with direct reports. Encourage managers to check in with their teams to find out how they are doing, if they need additional resources, and to remove any roadblocks.
  • Keep calm and communicate. The COVID-storm has not passed yet, keep communicating frequently with your employees. Now, more than ever, employees want to know how COVID-related changes are impacting the organization and themselves. Discuss with employees the direction of the organization, how they can support the organization’s initiatives, and when they achieve their goals.
  • Be true to your organization’s mission. When considering how to adapt your workplace, remember your guiding star – your organization’s mission, vision, values, and strategic plan.

If you have questions about managing and engaging a virtual workforce, leave requests, or other FFCRA or FLSA related questions, the HR and legal team at Lake Effect can help.

We are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails from your Lake Effect team for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

FFCRA & FLSA Updated Guidance From The Department Of Labor

The Department of Labor (DOL) recently updated its COVID-19 guidance related to the Families First Coronavirus Response Act (FFCRA) and the Fair Labor Standards Act (FLSA). This guidance from DOL addresses questions employers may confront as their communities face new public health orders and in-person school closures and delays.

FFCRA Guidance

As a reminder, employees may be eligible for up to 80 hours of leave under FFCRA’s Emergency Paid Sick Leave Act (EPSLA) and up to 12 weeks of leave under FFCRA’s Emergency Family and Medical Leave Expansion Act (EFMLEA). See our FFCRA Overview for the particular requirements of each leave program.

Employers should also note that a district court in New York recently struck down several significant FFCRA regulations, including those EPSLA regulations related to employees on temporary layoff or furlough and the expansive scope of the healthcare provider exemption for both EPSLA and EFLMLEA leaves. The impact of the ruling is not clear at this point, and we expect more information in the near future. We will keep you posted in our blogs about any changes to FFCRA as a result of that legal process and other lawsuits that are currently pending. In the interim, employers should contact legal counsel before denying a FFCRA leave request.

DOL’s guidance on FFCRA includes almost 100 frequently asked questions about the leave programs. Three that are of particular significance relate to virtual school and returning employees:

  • Online Schools Are “Closed”
    • Under the guidance, a school that has moved to an online platform for instruction is “closed” for purposes of FFCRA. (Question #70) This means that employees may be eligible to take up to a total of 14 weeks of continuous or intermittent EPSLA and EFMLEA leave to care for a child whose school is operating virtually. Although not specifically addressed by DOL, this guidance would also apply to schools operating a hybrid model. Under the hybrid model, the school is “closed” on those days in which a student cannot attend the physical school but open on those days when in-person instruction is offered.
    • If the school offers an option for virtual or in-person instruction, the school is not “closed” and FFCRA leave is not available for caregivers who choose the virtual option.
    • Employees who used some of their leave in the spring or summer when schools were closed due to COVID-19 are entitled to use their remaining amount in the fall if they are otherwise eligible.
  • Requiring a Negative COVID-19 Test Before Returning to Work
    • According to DOL, employers may require that an employee test negative for COVID-19 before returning to work from FFCRA leave as long as this requirement applies to all employees. (Question #94)
    • However, requiring a negative test is not mandatory. Dane County employers should note that PHMDC now strongly recommends against requiring employees to test negative before returning to work. Instead, employers may rely on the CDC (or your local public health department) guidelines for monitoring symptoms over a period of time.
  • Employers May Not Discriminate Based on Use of or Eligibility for FFCRA Leave
    • Employers may not use an employee’s request for FFCRA leave, or an assumption that the employee will request leave, to make any employment decision, including whether to recall an employee from furlough. (Question #97)

FLSA Guidance

DOL added important clarifications for non-exempt and exempt employees in its updated FLSA guidance. The updates include:

  • Flexible Scheduling for Non-Exempt Employees
    • To allow “needed flexibility” during the pandemic, employers that allow their non-exempt employees to work remotely with flexible schedules do not need to count all of the time between the first and last work activity during the day as hours worked. Instead, employers only need to pay for those hours actually worked. (Question #15)
    • This flexibility allows “windowed work” for non-exempt employees. Windowed work is breaking up a workday into blocks – or windows – of business and personal time while working from home.
  • Changes to Exempt Employees’ Job Duties and/or Salaries
    • As long as employers continue to pay the required minimum weekly salary of $684, employers may temporarily require exempt employees to perform non-exempt job duties and may prospectively reduce exempt employees’ salaries due to economic reasons related to COVID-19. (Questions #16 and #19)
    • Note that exempt employees must be paid their full salary for any week during which they perform any work, with the exception of their first and last workweeks.

We are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails from your Lake Effect team for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Ends Temporary Non-Enforcement of New Paid Leave Protections

As of April 21, 2020, covered employers (with fewer than 500 employees) across the country must be in full compliance with the paid leave provisions of the Families First Coronavirus Response Act (FFCRA), which became effective April 1, 2020. On April 20, the U.S. Department of Labor announced the end of the temporary period of non-enforcement, which was intended to allow employers time to understand and come into compliance with the new Emergency Paid Sick Leave and Emergency Family Medical Leave laws.

Moving forward, full compliance with FFCRA will be expected. Moreover, proper documentation and administration of the new Emergency Paid Sick Leaves and Emergency Family Medical Leaves will be critical to receiving payroll tax credits for the sick leave wages provided to employees under the new law.

If you have any questions or need assistance administering the new FFCRA paid leave laws, the attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Issues Temporary Rule Regarding Paid Leaves Available Under FFCRA

On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted a Rule (to be final when published on 4/6/20) issuing regulations under the Families First Coronavirus Response Act (“FFCRA”). The regulations provide further clarity as to how the leave provisions of the Expanded Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will be implemented. Key provisions include:

Department of Labor Issues Additional Guidance on FFCRA

On Saturday, March 28, 2020, the Department of Labor released additional guidance on the Families First Coronavirus Response Act (FFCRA), related specifically to the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA). We summarized key provisions offering new guidance.

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