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

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.

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California: New Employment Laws in 2018

Beginning on January 1, 2018 there are a number of new employment laws going into effect in California that employers should be aware of.  Read below for details regarding five of these new laws.  Continue reading

Leave of Absence for Small Employers Not Covered by FMLA

paperclip-178126_1920Employers with 50 or more employees must offer eligible employees up to 12 weeks of unpaid leave under the Family Medical Leave Act (FMLA). But what about employers with less than 50 employees? Are they required to provide a leave of absence to an employee with an illness or injury or to an employee who has a family member with a serious illness or injury? Quite possibly. There are a number of federal and state laws which may require an employer to provide a leave of absence, even when the employer is not covered by FMLA. Continue reading

The Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid leave in a 12 month period where their job is guaranteed upon their return. The law also requires that any group health insurance benefits the employee participates in are continued for the duration of the FMLA leave as if the employee was still working full time.

Covered Employers

FMLA only applies to companies with 50 or more employees during each of 20 or more calendar workweeks in the previous or current calendar year. This may include members of controlled groups and joint employers if the total employee count is 50 or more. In addition, all public agencies (including local, state and federal government agencies) as well as public and private elementary or secondary schools are covered employers regardless of the number of employees.

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Georgia’s New Kin Care Law

Effective July 1, 2017, large employers in Georgia who offer sick leave to their employees must allow their employees to use sick time to care for an immediate family member.

The new law applies to employers with 25 or more employees. These large employers who currently offer employees paid sick leave (or begin to do so in the future) must allow employees who work at least 30 hours per week to use up to 5 days of paid sick leave per year for the care of an immediate family member. Continue reading

Illinois: New Child Bereavement Leave Act

On July 29, 2016 Illinois Governor Bruce Rauner signed the Child Bereavement Leave Act which became effective immediately. chicago-61213_1920

The Act requires employers with 50 or more employees who are subject to the federal Family Medical Leave Act (FMLA) to provide eligible employees with up to 10 days of unpaid time off following the death of the employee’s child. Employees become eligible for the leave based on the eligibility requirements of the FMLA – that is after the employee has worked at least 12 months for the employer and has worked at least 1,250 in the preceding 12 month period.

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Intermittent FMLA Leave and Employee Health Coverage

One of our full-time employees has asked to take Family and Medical Leave Act (FMLA) leave on an intermittent or reduced leave schedule.  What does this mean, and how does it affect our employee’s health coverage?

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New York to Begin Paid Family Leave Program

On April 4, 2016, New York Governor Andrew Cuomo signed a new law which will allow eligible employees to receive paid family leave benefits. New York is the fourth state to enact legislation requiring paid family leave, following California, New Jersey and Rhode Island. The paid family leave benefits will gradually be implemented, eventually statue-of-liberty-962268_1280reaching a maximum of 12 weeks of leave by January 1, 2021.

The new paid leave will be funded by New York’s disability benefits fund through mandatory employee payroll deductions of approximately $1.00 per week. Employers will not be obligated to pay employees for time off under the new paid family leave program.

Employees will be eligible for paid family leave benefits after six consecutive months of employment with the same employer. All employees working at least 6 months at a single employer are eligible, regardless of the company size or the number of hour
s the employee has worked for that employer. Continue reading