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Last night, President-elect Joe Biden unveiled his plan to provide much-needed relief from the COVID-19 pandemic, highlighting the need for a more aggressive vaccination rollout and additional cash payments to Americans to help the country recover. Called the American Rescue Plan, Biden’s plan is expected to cost $1.9 trillion. Along with a general overview of the proposed economic relief plan, employers got a sneak peek into the new administration’s plan for paid leave. Touting that his Plan would extend leave benefits be to 106 more million employees, the President-elect intends to broaden leave obligations for a host of new…
As we turn the page to a new year, employers covered by FFCRA face a host of questions now that FFCRA is purely voluntary. For instance, employers are navigating questions such as: Should an employer voluntarily provide FFRCA leave to eligible employees now that leave is no longer mandatory? Is an employer allowed to provide emergency paid sick leave but not paid FMLA leave? (Or visa versa?) And does the employee receive a whole new bucket of paid leave for use in 2021? So many questions, and I know you’re looking for answers. Below, I’ve taken a stab at…
FMLA and ADA friends: You’ve known me long enough to appreciate that I don’t engage in a whole lot of shameless self-promotion.  Well, ok, some, but not so distasteful that you’ve given up on me, right? So, can you indulge me one time? Over the past several years, you are facing increasingly difficult FMLA, ADA and state leave issues, and you likely have limited internal resources to help. Some of you have modest-sized HR and legal staffs, and you could use the outside help when these difficult issues arise. Others of you just don’t have the time to deal with…
The Department of Labor is quickly catching up to the telemedicine explosion and America’s remote workplace. In an effort to ease FMLA administration and address the lightning-fast move toward telemedicine visits during the COVID-19 pandemic, the DOL issued guidance yesterday making clear that a telemedicine visit with a health care provider can be used to support FMLA leave. As you may recall under the FMLA, one way for an employee to prove they have a serious health condition is to attend an in-person visit with a health care provider within seven days of the first day of incapacity. However, the…
Remember my post from earlier today suggesting that FFCRA would be extended to 2021? Well, that was a false start. Throw the five-yard flag on me. Late last night, as I read through House Speaker Pelosi’s press release announcing a stimulus deal, I focused in on the following statement that the new stimulus bill: Supports paid sick leave: The agreement provides a tax credit to support employers offering paid sick leave, based on the Families First framework. Naturally, my tired brain read the “Families First” phrasing to mean that the FFCRA stalwarts in Congress were able to negotiate an extension…
Yesterday, Congressional leaders agreed on a $900 billion stimulus package that would provide modest stimulus funding to Americans and employers to help them overcome the hardship created by the COVID-19 pandemic. House Speaker Nancy Pelosi and Senate Democratic Leader Chuck Schumer issued a press release late yesterday indicating that, among other things, this latest stimulus package will extend the payroll tax subsidy for employers offering workers paid sick leave. (News outlets are reporting the same thing.) As such, it appears as though FFCRA leave will indeed be extended into 2021, and employers will have appropriate federal funding to cover…
Hearing the growing calls to provide clear guidance on the extent to which employers can require their employees to obtain the COVID-19 vaccine, the EEOC has updated its Technical Assistance guide “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” on the subject of the COVID-19 vaccine. What the heck does this have to do with FMLA, you ask? Well, not a whole lot. But: 1) advising clients on the COVID-19 vaccine takes up much of my life right now, so humor me while I offer my initial impressions here; and 2)…
It’s year end.  And although the pandemic has taken a sledgehammer to business profits across the country, some employers are set to issue year end bonuses. In fact, a fair number of employers are set to award bonuses to employees in recognition of their commitment to customers and clients during the pandemic. Perhaps you offered a pay incentive to employees to improve attendance or production during the pandemic. Under this incentive program, employees are downgraded for any tardiness or absences (even for FMLA or ADA-covered leave), which, in turn, disqualifies an employee from receiving the incentive. In these situations, can…
First came Pfizer. Then Moderna. The COVID-19 vaccine is coming. By the time you read this article, even more COVID-19 vaccines may very well be in the mix. But is a COVID-19 vaccine the antidote that brings much needed relief to workplaces across America? Naturally, employers want to know: as employees return to work (whether from a leave of absence or as part of the transition from working from home), can they be required to obtain a COVID-19 vaccine before returning? Or can an employee legitimately object to taking the vaccine? Yes, but with Some Caveats Generally speaking, employers can…
As we enter the home stretch of 2000 [thank God!], clients are increasingly asking me: Will FFCRA be extended into 2021? When Congress passed the Families First Coronavirus Response Act (FFCRA) in March, it set the Act to expire on December 31, 2020. Wishful thinking at the time, wasn’t it? With the end of the pandemic now no where in sight, what are the chances the FFCRA is extended into 2021? Quick Answer: I. Have. No. Idea. But wait, before you close your web browser, I still have an opinion! Additionally, a recent study suggests that emergency paid sick leave…
This one is no laughing matter.  Actually, it’s downright sad. A few years ago, I reported on an employee at an Illinois school who was able to raise an FMLA claim when her supervisor ignored her many pleas for help as she struggled with mental health issues. Fast forward a few years: a jury recently awarded this employee back pay and other damages as well as attorney’s fees. When all is said and done, the employer’s failure to act within the law will cost half-a-million dollars of taxpayer money. Here is the story and my suggestions to avoid this kind…
In the middle of a global pandemic, employers still grapple every day with the age-old question: When an employee exhausts FMLA leave and cannot return to work, does the law require the employer to provide the employee additional leave? Question 1A surely is close behind: can the employee safely be terminated at that point?  Without debate, these are among the most difficult HR issues an HR professional or in-house employment counsel faces. The Facts Take this scenario: Jim is a bus operator for the public transportation system in Columbus, Ohio, and he suffers from back pain due to spinal stenosis…
This week, President Trump and former Vice President Joe Biden will meet for the first of several presidential debates leading up to the November 3 general election.  Several of my blogging colleagues and I have identified THE debate question we would ask each of the candidates if we had had the chance. Channeling my inner Chris Wallace, these are the leave-related questions I would pose: To Vice President Biden With the exception of the Families First Coronavirus Response Act (FFCRA), there is no federal law requiring private-sector employers to provide paid family and/or medical leave to their employees. Numerous states…
On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) following a federal court’s decision that invalidated a handful of regulatory provisions interpreting the FFCRA.  Although the DOL was widely expected to address the court decision through revised regulations and/or court action, these new regulations throw additional curveballs for employers already struggling to comply with extensive COVID-19-related legislation. Over the weekend, five Littler colleagues and I (including Bill Allen, Alexis Knapp, Lauren Marcus, Emilie Hammerstein, Mike Lotito) discussed, debated, even delighted in these new…
Those crazy little rascals at the Department of Labor must be readers of this second-rate FMLA blog! [No, they’re not, Jeff. But I am sure you are going to tell us why you think so.] Last week, I published FAQs offering insight on how employers should administer leave under the Families First Coronavirus Response Act (FFCRA) when an employee requests leave because a child’s school is closed or child care unavailable. As you may recall from that post, I noted that the DOL left open some questions on issues like whether FFCRA leave is available for hybrid learning or on…
As we head into the second half of August, many of our kids are heading back to school. Or maybe they’re not. Full day in-person classes? Or perhaps hybrid? Semi-hybrid? Remote? Home school? Dropping out? The possibilities are endless. With some version of school starting up in a neighborhood near you, employers will face challenges as potentially significant numbers of employees will be called away from work to attend to parental duties, since many of their children are being forced into more remote learning this fall due to the COVID-19 pandemic. And my phone is ringing regularly with questions about…