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By: Jeff Nowak

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Jeff Nowak

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Earlier this week, a federal court in New York kicked to the curb four key provisions of the U.S. Department of Labor’s regulation implementing the paid leave provisions of the Families First Coronavirus Response Act, requiring employers covered by the Act to quickly decide how it will address these scenarios in the future. As you will recall, the DOL issued final FFCRA regulations on leave on April 1, 2020 as a sweet little April fool’s present for us. Days later, the State of New York sued the DOL, claiming that the agency  unlawfully denied leave to otherwise eligible employees and…
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Employers across America are requiring their employees to wear face coverings or masks while at work. At the same time, employers across America are dealing with employees who have a million excuses why they can’t wear a face covering at work. Many of these excuses aren’t valid. Some are. If an employee claims to have a medical condition that prevents them from wearing a face covering, your ADA and FMLA radar should start buzzing. But how do you address this request? Start with the ADA An employee’s request not to wear a mask because of a medical condition triggers the…
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In the middle of the COVID-19 pandemic, the U.S. Department of Labor hit the pause button on pandemic concerns and returned at least for a moment to the good old fashioned F-M-L-A. This morning, the DOL issued new model notices and forms to be used by employers in the administration of the FMLA. The notices and forms, though different in their appearance (think lots of small boxes, longer and far more numbered paragraphs, and even a few colors), are not game changers when it comes to substance. These new model documents tend to tweak the old forms around the edges,…
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Sadly, too many of my telephone conversations with clients over the past few months have involved layoffs. Furloughs. Elimination of jobs. Of course, we’ve also discussed the great unknown of when some of these employees will be brought back to work. At times, questions have arisen over how a furlough might impact an employee who currently is on FMLA leave or has requested FMLA leave for a time during the furlough. What takes precedence?  The furlough or the FMLA leave? What is a Furlough? First things first. Let’s make sure we understand the terminology. The term “furlough” does not necessarily…
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Today, my little FMLA blog turns 10 years old. Ten years ago, at a time when very few people knew what the heck a “blog” was, including me, I took a chance that HR and leave of absence professionals and attorneys might need some help answering the difficult, yet common issues they faced when administering the FMLA. So, on May 26, 2010, I published my very first blog post – a short tale about an employee, Ellen, who got canned when her employer discovered a mountain of deficiencies in her work while she was out on continuous FMLA leave. Upon…
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Are you working from home during the pandemic? Me, too. Are you having trouble keeping your kids off Fortnite and Minecraft, and literally every other screen in your house? Me, too. Do you still love your children? Me, too. For the most part. But with four young children at home, I am ready to return to the office. Soon. [While still loving them, of course.] Summer Camps and Activities Obliterated Like many parents, I face the reality that nearly every summer camp and activity in summer 2020 has been cancelled. Aren’t we lucky? Naturally, employers are wondering whether they are…
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Are you an employer covered by the the Families First Coronavirus Response Act (FFCRA) and do you use temp employees? I’ve got something to share with you. Over the past few weeks, I’ve been giving presentations to employers on the FFCRA [who hasn’t!?!] and have counseled them on their FFCRA obligations with respect to the temp employees whose services they use (from the temp agencies that employ them). Using the FMLA classic regulations as my authority, I’ve counseled these employers that they are not on the hook to provide paid sick and paid FMLA leave to these temp employees so…
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As employers have noodled on the new federal emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) law, you’ve done a double-and triple-take on the notice and documentation requirements under this new law. In short, they can be confusing. As a result, plenty of clients have asked me to break down this process just to confirm they are understanding these confusing rules. To make this as clear as possible, I thought it best to break down the notice and documentation processes for an employee requesting leave.  Here we go: What is the Time Frame for Requesting EPSL and FMLA+?…
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Under the Families First Coronavirus Act (FFCRA), employers with fewer than 500 employees are required to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) for certain reasons related to the Coronavirus pandemic. The law went into effect April 1 and its obligations continue through December 31, 2020. Employers need policies and forms to comply with this new law. We now have these policies and forms ready for you. Why Do You Need a New Policy and Forms to Comply with this New Law? This new law is fraught with compliance issues for employers.  Take, for instance, these risky…
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For the past month, I’ve been in the leave law trenches with several Littler colleagues Alexis Knapp, Jim Paretti, Sebastian Chilco and Michael Lotito. The ‘virtual’ trenches, that is, which serves them well, as they have no clue I’ve spent nearly the entire time without a shower and in my PJs. When we all learned Friday afternoon that the Department of Labor had published yet another set of Q&As interpreting the emergency paid sick and paid FMLA leave law, I won’t sugar coat it – we wanted to cry.  After all, we were fresh off our analysis…
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Let me start with a toast. A toast to the Department of Labor, which was thrust into a spotlight it didn’t seek. After Congress hastily cobbled together a bunch of confusing words on paper providing many American workers with a modest amount of paid sick leave and amending the FMLA to do the same, DOL was tasked with making sense of Congress’ ramblings in a matter of days. Almost immediately, DOL started issuing FAQs (FAQs 1, FAQs 2, and FAQs 3) to help employers and employees better understand the expectations of the Families First Coronavirus Response…
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Late yesterday, the Internal Revenue Service released detailed FAQs outlining the documentation employers can require to substantiate an employee’s need for emergency paid sick leave (EPSL) and emergency paid FMLA (FMLA+).  The IRS also detailed the documents that must be maintained to obtain tax credits for EPSL and FMLA+ payments. Employee Request for Paid Leave The process for requesting EPSL or FMLA+ starts – as a leave request always does – with the employee. iiiiiiIn its guidance, the IRS made clear that the employee must first submit a written request for leave that includes: The employee’s name; The date or…
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Who wants Part III? Come on, you know you’ve been craving this all weekend. More FAQs.  It’s like winning a cake eating contest, and the prize is . . . more cake. Late Saturday night, the Department of Labor issued a third round of Q&As (FAQs #38-59) aimed at helping employers administer emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) as part of the Families First Coronavirus Response Act (FFCRA) (pdf), which as of April 1, 2020 will provide relief to American workers in the wake of the coronavirus pandemic. In this latest round of FAQs, DOL gave…
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For the record, I’m not getting much sleep this week, thanks to the Department of Labor. But it’s evident the DOL isn’t getting much sleep either. Late last evening, the DOL issued a second round of Q&As (FAQs #15-37) aimed at helping employers administer emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) as part of the Families First Coronavirus Response Act (pdf), which provides initial relief to American workers in the wake of the coronavirus pandemic. The first Q&A issued on Tuesday, March 24 focused largely on employer coverage and pay calculations. Last night, however, the DOL started getting…
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Late yesterday afternoon, the Department of Labor issued an initial question and answer guidance aimed at helping employers administer emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) as part of the Families First Coronavirus Response Act (pdf), which aims to provide initial relief to American workers in the wake of the coronavirus pandemic.  (We covered this new law in a webinar yesterday, the recording of which you can access here.) Among the key questions answered in the DOL’s Q&A, the agency set the effective date of the new law, addressed which (and when) employees should be included…
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After passage last week of the Emergency paid sick leave and paid FMLA law, employers have been clamoring for guidance on the timing of reimbursement by the federal government for any paid leave they provide their employees after the law goes into effect on April 2, 2020. In fact, many employers have had to make difficult furlough and termination decisions worried about whether they would even have the cash flow to cover any paid leave mandates while waiting months, even a year, before the feds reimburse them. Late Friday, the Internal Revenue Service and Department of Labor issued an …