Return to School and Emergency FMLA Leave

Due to the worldwide pandemic, this fall many schools are operating differently than they have in previous years with some schools operating fully in person, some fully remote, some a combination of the two, and some giving parents the choice between in person and remote learning. Employers may need to provide flexibility to their employees who have school aged children based on the operations of their child(ren)’s school.

Employers with less than 500 employees may be required to provide employees with up to 12 weeks of leave to care for their child in the form of emergency FMLA now required under the federal Families First Coronavirus Response Act (FFCRA).  This emergency FMLA requires covered employers to provide employees with 2/3 of their regular pay for the duration of their leave (a maximum of 12 weeks). Note: This pay is reimbursed to employers in the form of a payroll tax credit. More details about the FFCRA are available here: Families First Coronavirus Response Act.

The Department of Labor (DOL) has recently provided some clarification as to when the emergency FMLA leave under the FFCRA applies based on the way an employee’s child’s school is operating.

Schools Operating Completely In Person

When schools are operating with full time in person instruction, parent employees are not eligible for any emergency FMLA under the FFCRA for childcare reasons.

Schools Operating In A Full Virtual Setting

When schools are operating completely virtually/remotely with no in person instruction, an employee may be eligible for emergency FMLA leave and up to 2/3 of their regular pay for up to 12 weeks (or until the child can return to in person schooling).

Schools Operating In a Hybrid Model (Part In Person / Part Virtual Learning)

When schools are operating in a hybrid model where students report in person for learning some days and other days do remote learning, employees are only eligible for emergency FMLA leave on the days that the child is required to do remote learning and is unable to physically attend school for face to face instruction. On the days the employee is physically in school, the employee should be able to work as scheduled.

Schools Offering Parent Choice Between In Person and Virtual Learning

When schools are allowing parents to chose whether they send their children to school for in person instruction or keep them home for virtual or remote learning, an employee would not be eligible for emergency FMLA leave regardless of which option they choose for their student. This is because the school is “open” for in person learning and therefore the employee’s child (or children) has the opportunity to attend school in person so that the employee can return to work.

There may be an exception to this under the regular FMLA (for companies with 50 or more employees) if a child has a health condition that would require them to not attend school and would require the employee/parent to stay home to care for the child. This would not be covered under the FFCRA however and would not require the employee to be paid for this time off.

Combined Limits

The FFCRA was passed in March, so some employees may have already used some or all of their 12 week allowance. For example, if an employee took 6 weeks off in the spring to care for their child (or children) who’s school closed due to COVID-19, they would only have 6 more weeks available now.

Documentation

Employers should have employees sign a statement confirming that their child does not have an option to attend in person schooling and therefore the employee is unable to work because no other childcare options exist due to the school closure.

New Department of Labor FAQs Related to COVID-19 and Federal Labor Laws

The U.S. Department of Labor (DOL) recently issued more guidance for employers and workers related to rights and responsibilities under federal leave and wage and hour laws related to the current COVID-19 pandemic.

Updates were made to guidance for the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). Highlights of the updates are included below. Continue reading

Illinois Artificial Intelligence Video Interview Act Effective January 1, 2020

Artificial intelligence (AI) is becoming more and more prevalent in workplaces today and is changing the way we hire. Illinois is the first state to create regulations around using AI for video interviewing and its law becomes effective January 1st, 2020.   Continue reading

Paid Leave Soon to be the Law in Nevada January 2020

Following suit with other states, Nevada will soon require employers with 50 or more employees to provide general paid leave to all employees. This include full-time and part-time employees, but excludes temporary, on-call, and seasonal employees.

Effective January 1st, 2020, employers must provide “at least 0.01923 hours of paid leave per hour of work performed.” This means that an employee who works 40 hours a week for a whole year will accrue 40 hours of paid leave. This paid leave can be used for any reason, in fact your employee does not have to give you a reason. Still, employees must give a “reasonable” amount of notice before using their paid leave. Continue reading

New Hire Reporting May Be Required for Your Independent Contractors

Most employers are aware of the federal law requiring you to report all of your newly hired employees (and rehired employees) to your state within a specified time period, but were you aware that you may also be required to report new independent contractors that begin working for you to your state as well?

New hire reporting is mandated at the federal level by The Personal Responsibility apaperclip-178126_1920nd Work Opportunity Reconciliation Act of 1996 (PRWORA), but specific details as to the requirements of the new hire reporting vary from state to state.  States determine how the new hire reporting information should be submitted, in what format, in what amount of time (maximum of 20 days from date of hire per federal law), and who should be reported. The “who” includes independent contractors for many states such as California. Continue reading

California Bill Would Significantly Change the Definition of an Employee

California businesses who rely on “gig workers” to perform the work for the company may soon need to restructure their business model based on a new bill that has been passed by Congress in California and is expected to be signed soon by Governor Gavin Newsom. This new bill would require that companies using these “gig workers” (the two biggest companies being Uber and Lyft) reclassify their workers to be considered employees rather than continue to be classified as independent contractors.  

It’s important to note that this would only apply to California workers. The National Labor Relations Board (NLRB) ruled earlier this year that Uber drivers (and similar workers) were independent contractors because they used their own equipment, set their own schedules, could work for competitors, and were responsible for their own profit and/or loss. Continue reading

Minimum Wage to Increase for Michigan Employees

The state of Michigan has recently passed a law that will gradually increase the minimum wage for non-exempt employees to $12.00 per hour by January 1, 2022.  The state minimum wage applies to all Michigan employers with two or more employees who are 16 years of age or older.

In the past, Michigan has allowed employers to pay tipped employees 38% of the minimum wage, but that percentage will gradually increase to 80% of the minimum wage by January 1, 2022.  Continue reading

Employee Paid Time Off Donation Program

Let’s discuss a situation that’s somewhat common among employers.  You have an employee, Sharon, who has used all of her allowed paid time off (vacation, personal, sick, etc.) for the year. Sharon’s mother falls ill with a serious medical condition and Sharon needs to take additional time off work to help care for her mother, but she doesn’t have any paid time off available. Sharon’s coworker, Kim, has a lot of accrued paid time off with no vacation plans so she asks you if she can donate some of her available paid time off balance to Sharon to be able to use during her absence so that Sharon doesn’t have to take unpaid time off work to care for her mother. Can you allow Kim to donate her paid time off to Sharon?

You can. But it’s not that simple.

Continue reading

Handling the Death of an Employee

While nobody wants to think about tragic situations such as the death of an employee, it’s best to have a list of items to take care of should one of your employees pass away. Having a plan of action in place will help you stay organized and ensure all necessary items are addressed properly.

Prior to the death of an employee, and on an at least annual basis, it is recommended that you have employees review and update personnel forms.  These forms include emergency contacts, their life insurance and 401k forms, and health medical savings accounts.  There are many life events that can occur throughout your employees’ time with your company that can affect how their end of life benefits are administered (when applicable) such as separation, divorce, or death within their family resulting in a change of beneficiary information. Continue reading

Before a Closing or Layoff, WARN Your Employees

Were you aware that before closing a plant or laying off a large number of employees you may be required to provide advance notice to the affected employees? Many employers are not aware of this requirement.  The Worker Adjustment and Retraining Notification (WARN) Act requires that some usdol_seal_circa_2015_svgemployers give employees at least 60 days’ advance notice prior to certain plant closings and mass layoffs.

Employers with 100 or more employees must comply with the WARN Act.  The 100 employee count does not include employees who have worked less than 6 months in the last 12 months or those employees who work less than 20 hours per week. It’s important to note that even though these employees are not included in the employee count, they still must be provided notification at least 60 days before a plant closing or mass layoff. Continue reading