FMLA Insights | FMLA Insights | Jeff Nowak | Littler

Time 2021-01-07 08:03:21

Web Name: FMLA Insights | FMLA Insights | Jeff Nowak | Littler

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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 COVID-19 pandemic has put the clamp on the ability to attend in-person visits with a physician, as medical offices across the country turned to telemedicine early on in the pandemic.In yesterday s guidance, the DOL cemented a position it actually announced earlier this year that is, for purposes of establishing a serious health condition under the FMLA, a telemedicine visit is considered an in-person visit for purposes of FMLA leave so long as the visit is:an examination, evaluation, or treatment by a health care provider;permitted and accepted by state licensing authorities; and,performed by video conference.This guidance may seem familiar to you, as the DOL issued an FAQ earlier this spring greenlighting telemedicine visits under the FMLA through December 31, 2020.  Yesterday s guidance now extends this concept permanently. In this latest guidance, however, DOL made clear that video conferencing would be critical to meeting FMLA s requirements, noting that communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an in-person visit. FMLA Postings Also Can Be ElectronicThe DOL didn t stop with telemedicine visits. As many American workers are working remotely, DOL also was wise to address an employer s posting requirements in an increasingly remote workplace.The FMLA regulations require covered employers to post in conspicuous places on their premises a general notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the DOL.In additional guidance also issued yesterday, the DOL confirmed that electronic posting of the general notice will satisfy the FMLA posting requirements where all hiring and work is done remotely and an employer posts the appropriate FMLA notice on an internal or external website that is accessible to all employees and applicants. In doing so, employers must ensure they’ve informed employees about how they can access the electronic notice.Where employers have employees working on-site and remotely, which would include the far majority of employers, the DOL notes that the employer may supplement a hard-copy posting requirement with electronic posting, but that the hard-copy posting still is required.  In these situations, the DOL encourages both methods of posting.Virtual high fives all around!Remember my post yesterday 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 FFCRA stalwarts in Congress were able to negotiate an extension of FFCRA leave beyond its current expiration date of December 31, 2020.Apparently, I was only half-correct, resulting in a two and one-half yard penalty.Here s the LATEST info:FFCRA Leave Ends This Month, but Tax Credits Continue for Leave Voluntarily Extended to EmployeesThe current version of the bill, which is expected to be called for a vote this evening, results in the following:Mandated FFCRA Leave ends on December 31, 2020As of January 1, 2021, covered employers may voluntarily provide emergency paid sick leave or emergency paid FMLA Leave under FFCRA (as adopted earlier this year) and take the tax credit associated with this leave.The tax credit may only be taken for leave through March 31, 2021.In other words, FFCRA leave is no longer required, but if covered employers voluntarily provide these leave benefits through March 31, 2021, they are eligible to take the tax credit for the leave.Please note: I am not reading this amendment to mean that an employer can take a tax credit for an entirely new bucket of FFCRA leave on January 1, 2021. No, no, no!  If an employee used 80 hours of paid sick leave (EPSL) earlier this year, for instance, they technically would not have had access to a new EPSL bucket on January 1, 2021. Therefore, the employer cannot take the credit for additional EPSL provided in 2021. That said, if the FMLA 12-month period resets under the employer s policy, it seems apparent that an employee would be entitled to paid FMLA once again. Perhaps the DOL or IRS will provide updated guidance on this, but this interpretation seems to be the most logical based on a reading of the statutory text.Also note: This bill does nothing for public employers, as unfortunately, they never were able to take the tax credit. For these folks, no mandatory FFCRA leave and no tax credit.You want a taste of the new statutory language? Click here for 5593 pages of stimulus overload (pdf).Don t Forget State LawsLike the federal government, many state and local governments enacted similar paid COVID-leave laws and ordinances earlier this year to assist employees dealing with COVID-19 or caring for family members affected by the pandemic. Although larger employers (with 500 or more employees) are not governed by FFCRA, several states and a few municipalities have enacted or amended paid sick leave laws to account for time off due to COVID-19 related reasons. For example, Colorado, New Jersey, Oregon, the District of Columbia and several cities in California (Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo, and Santa Rosa) have extended FFCRA-like benefits to employers not covered by the federal law.Some of these laws also expire December 31, 2020. But some do not. It is critical that employers be mindful of other paid leave requirements under state and local laws, as well as their own paid leave and PTO policies.What else is contained in this House bill? For a more comprehensive analysis of this House bill, a few Littler colleagues and I review it here.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 emergency paid sick leave and paid FMLA leave taken after December 31, 2020.Details are scarce as I write this post I literally know nothing more at this moment but I wanted to let you know what I ve learned so far.Stay tuned I will report out more specifics as I have them.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) this issue is governed extensively by the FMLA s big sister, the Americans with Disabilities Act, which contains specific restrictions on an employer’s ability to subject employees to medical examination and disability-related inquiries.Takeaways from the Updated EEOC GuidanceWe ll be analyzing these new guidelines in the upcoming days, but here are my first impressions of the updated EEOC guidance:Green light to require COVID-19 vaccine: In issuing this guidance, EEOC confirms that the COVID-19 vaccine is not a medical examination. Why is this significant? It effectively gives employers the green light to require that employees obtain the COVID-19 vaccine (subject, of course, to the exceptions noted below).  This is one of the key takeaways of this guidance.Some requirements relating to screening questions: If the employer requires employees to obtain the vaccination, administered by the employer, the employer must show that any screening inquiries are job-related and consistent with business necessity.  There are two exceptions to this rule.  First, if the employer chooses to make the vaccine voluntary and the employee has the choice to answer (or not) pre-screening questions, this passes ADA muster.  Second, if the employer requires that employees receive the COVID-19 vaccine and the employee receives the vaccine from a third party with whom the employer does not have a contract (think Walgreens or CVS), the ADA is not implicated. Put another way, an employer can mandate the COVID vaccine so long as long employees obtain the vaccine from a third-party pharmacy or medical provider with no connection to the employer.Proof: Employers can request proof of vaccine. Nice to get that important question quickly knocked off the list.Accommodations must be considered: As expected, the EEOC maintains its long-held position that employers must consider ADA and religious accommodations when requested.Direct threat still plays big role: Let s assume that an employee seeks an ADA or religious accommodation to avoid taking the COVID-19 vaccine. What then?  At this point, the EEOC tells us that the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.” The EEOC advised that employers must conduct an individualized assessment of the usual four factors in determining whether or not a direct threat exists:the duration of the risk;the natured and severity of the potential harm;the likelihood that the potential harm will occur; andthe imminence of the potential harm.Refusal to Obtain Vaccine doesn t mean automatic exclusion from workplace:  The EEOC makes clear that, even if you find that an unvaccinated employee poses a direct threat, the employer cannot automatically exclude them from the workplace.  The EEOC explains it this way:If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.Practicality Should Rule the DayOn one hand, this latest EEOC guidance is welcome news for employers, as it gives us a road map (albeit with outstanding questions) for mandating vaccines. But, as I ve shared with clients, the issue of mandatory vaccines is not as much a legal issue as it is a practical issue.Sure, employers now have legal clearance to require vaccines, but the more important question is, Should we require them? A couple of thoughts to keep in mind in the middle of this vaccine madness:Deep breaths. Your rank-and-file employees access to the vaccine is still several months away. So, why the rush to figure out right now whether you will mandate the vaccine? You re far better off taking a wait-and-see approach to see how the kinks get worked out.Practical problems. How can you require a vaccine when many of your employees won t have access to the vaccine till springtime? Let that sink in for a minute. Ok, I ll move on.More practical problems. When the vaccine is finally readily available, it s likely that at least 30ish% of your workforce will decline the vaccine. What will you do then? Fire 30% of your workforce? Of course not, suggesting that employees have some leverage now and into the future.Incentives. Start thinking about how you can strongly (but legally) incentivize your employees to obtain the vaccine. In the weeks ahead, we will be working with our clients to establish incentive programs to maximize the chances that employees voluntarily obtain the vaccine.  Be sure to discuss the legality of these incentives with your favorite employment attorney.In the meantime, breathe.Don t. Forget. To. Breathe.We re going to get through this.Thanks to those who attended my webinar last week with Matt Morris on “Navigating Difficult FMLA and ADA Issues in the Middle of a Pandemic.” You still can access the recording here (a short registration is required), and the presentation PowerPoint slides can be downloaded here (pdf).To the nearly 11,000 people who registered for the webinar, thank you. Among other things, you were rewarded with photos of Golden Retriever puppies, beautiful owls, dancing dads and a father/son light saber duel!As for the FMLA and ADA, we covered:Is an employee who tests positive for COVID-19 covered by the FMLA?  Almost surely yes, we agreed, whether it is through inpatient care, incapacity plus treatment, or based simply on observing the CDC s quarantine guidelines.Does an employee s generalized fear of COVID-19 trigger FMLA? Or ADA?  The Department of Labor noted that simple, generalized fear is not covered by FMLA, but we discussed during our webinar how underlying anxiety and other mental health conditions might transform these situations into FMLA scenarios.  We also warned of the potential employee relations issues involved with denying leave in these situations.Can an employee take FMLA or extended ADA leave when they have an underlying health condition (or need to care for a family member) that may be worsened by COVID-19?  We spent a ton of time on this, because this particular question has plagued employers.  Through the use of case law and review of the FMLA regulations, we outlined the risks in denying FMLA leave to these individuals.  We also outlined the analysis if your employee is seeking extended or indefinite ADA leave in these situations, focusing on the kinds of questions you should ask your employees and managers to determine whether there is an obligation to provide additional leave.  In doing so, we analyzed the factors to consider to establish that an extended leave is an undue hardship.Finally, we provided extensive guidance on handling employee work-from-home requests during the pandemic, focusing closely on the only meaningful court decision issued thus far during the pandemic: Peeples v. Clinical Support Options, which reminds us of the critical obligation to engage our employees in an interactive process to determine on an individualized basis whether telecommuting is an appropriate accommodation.Want some insight into the ins and outs of these common, difficult pandemic issues?  Access the recording here!Of course, we ended our webinar with a holiday jingle that reflected the mood of the day: I m Dreaming of a COVID-Free Christmas sung to the tune of “White Christmas” by the Bing Crosby (a version which you can listen to or skip on the recording!):I’m Dreaming of a COVID-Free ChristmasJust like the one we had last yearWhere the only FMLA Temptation, is an Exotic Beach VacationCaught on TikTok, to ruin a Career* * *I’m Dreaming of a COVID-Free ChristmasFor every Employee I superviseWhere My Employees complain of MigrainesOr good ‘ol chronic back painsThese classic FMLA excuses, I need not incentivize* * *I’m Dreaming of a COVID-Free ChristmasWith every telework request I receiveBut what I hope isn’t part of the askAre unlimited breaks and a stand up deskWe leave you, as we did during our webinar: There will be life beyond this pandemic, and it will be wonderful! I wish you a peaceful, healthy and happy holiday season!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 an employer disqualify an employee from the bonus or incentive?Let s Cover FMLA Absences FirstIn short, yes, an employer can withhold a bonus from an employee who is ineligible for the bonus due to FMLA-related absences.Why?The FMLA regulations provide in relevant part:. . . if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.  For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.29 C.F.R. § 825.215(c)(2) (my emphasis and bold).Notably, when qualifying employees for, and/or calculating bonus payments under the FMLA regulations, employers must treat employees who take FMLA leave the same as those who are on “an equivalent leave status for a reason that does not qualify as FMLA leave.”In the preamble explaining the definition of equivalent leave status, the Department of Labor states:Equivalent leave status refers, for example, to vacation leave, paid time-off, or sick leave. Leave for a reason that does not qualify as FMLA leave refers, for example, to vacation or sick leave that is not for an FMLA purpose (i.e., the vacation or sick leave is not also FMLA leave). Thus, for example, if an employer policy does not disallow an attendance bonus to an employee who takes vacation leave, the employer cannot deny the bonus to an employee who takes vacation leave for an FMLA purpose (i.e., substitutes paid vacation leave for FMLA leave). However, if an employer’s policy is to disqualify all employees who take leave without pay from such bonuses or awards, the employer may deny the bonus to an employee who takes unpaid FMLA leave. If an employer does not count vacation leave against an attendance bonus but does count unpaid leave against the attendance bonus, the employer may deny the bonus to an employee who takes 12 weeks of FMLA leave, two weeks of which the employee substitutes paid vacation leave, but ten of which the employee takes as unpaid FMLA leave.73 Fed. Reg. 67985 (Nov. 17, 2008).In the above guidance, the DOL focuses extensively on the substitution of vacation or sick leave and not on the types of non-FMLA leave that are more difficult to compare and interpret against FMLA leave, such as leaves like military leave, jury duty leave, and other short periods of personal leave.  What s worse, there have very few court decisions (almost none) interpreting the term “equivalent leave status,” and the FMLA regulations or the preamble to the regulations otherwise do not offer any real guidance.Some Persuasive Authority?Last year, one court offered us some guidance on this critical issue.  In Clemens v. Moody s Analytics, Inc. (pdf), Greg Clemens argued that his former employer unlawfully prorated bonus payments owed to him under an incentive program offered by Moody s. Under this incentive program, Greg was eligible to receive incentive payments for completing certain work throughout the year.  Under Moody s incentive program, it prorated payments based on the length of an employee s leave, regardless of the employee s reason for leave. In other words, if you missed time regardless of the reason you lost bonus money.  Moody s took this approach for all types of leave.  As a result, the federal appellate court ruled that Moody s did not unlawfully interfere with Greg s rights by prorating his bonus payments.What s the moral of the story? When qualifying employees for and/or calculating bonus payments or incentives, employers must treat employees who take FMLA leave the same as those who are on “an equivalent leave status for a reason that does not qualify as FMLA leave.” So, bottom line, if you deny bonuses and incentives to those on other, similar forms of leave — such as absences related to jury duty leave, military leave to ADA leave — you can deny the same bonus to the employee who took FMLA leave.What about FFCRA Leave or State/Local Paid Sick Leave?This year, many of us are providing leave to our employees under the Families First Coronavirus Response Act (FFCRA). Like FMLA, can you deny or prorate bonuses to employees who take FFCRA leave?As you will recall, FFCRA consists of two parts: 1) paid emergency sick leave (EPSL), under which an employee can take up to 80 hours of leave (or two weeks) for any of six reasons identified due to COVID-19; and 2) paid FMLA (FMLA+), under which an employee may take up to 12 weeks of leave to care for a minor child if the child’s school or place of child care has been closed or is unavailable.FMLA+ adopts the classic FMLA regulations, and the DOL left untouched any of its classic FMLA regulations (Section 215 above and otherwise) with respect to bonus payments. So, for the 12 weeks of FMLA+, it s seems obvious that you can deny or prorate a bonus paid to an employee who took this form of leave. As above, we simply follow the FMLA regulations.EPSL is a bit tougher, as there are no applicable guidance in its regulations. Surely there is an argument that this situation should be treated the same as FMLA+ and other forms of leave. In other words, if you treat other equivalent forms of leave in the same manner, you should be clear when it comes to EPSL. But admittedly, it s clear as mud. In a similar vein, might we need to worry about state and local paid sick leave laws? In a word, yes. Although larger employers (with 500 or more employees) are not governed by FFCRA, several states and a few municipalities have enacted or amended paid sick leave laws to account for time off due to COVID-19 related reasons. For example, Colorado, New Jersey, Oregon, the District of Columbia and several cities in California (Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo, and Santa Rosa) have extended FFCRA-like benefits to larger employers not covered by the federal law. These laws and ordinances typically do not speak to how you handle bonus payments. Because these laws generally provide leave in addition to any FFCRA entitlement, it’s critical that you determine how these laws impact your employees. Before making or denying bonus payments, put a call into your friendly neighborhood employment attorney to double-check.Put Aside the Law just for a MomentWhen it comes to these year-end bonus payments, let s keep in mind that: 1) we are in the human relations business, and 2) we re all suffering through a pandemic of a lifetime where scores of parents will be left without usual child care to rely on, and will need to take leave for reasons dealing with COVID-19.  This is a time where we simply might want to give the employee the benefit of the doubt.I know I just dole out legal advice, but months from now, we re going to kick this pandemic and things will return to (relative) normal. At that point, when an employee has choices on where they work, do you want to be the one who stiffed them a few bucks on a bonus?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 CaveatsGenerally speaking, employers can require that their employees receive a vaccine. Our frame of reference is the annual seasonal flu shot, which is required by certain employers, such as those in the health care industry.But doesn t a pandemic only strengthen an employer s right to require a vaccine before returning to work? One would think so, but we also don t have a ton of guidance on the legality of mandatory vaccines in the workplace.  In 2009, the EEOC provided guidance on the question of whether an employer may compel all of its employees to take an influenza vaccine regardless of the employee s medical conditions or religious beliefs. The EEOC responded as follows:No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.The ExceptionsAs forecasted in the EEOC s comments above, even if employers had the green light to require a COVID-19 vaccine before returning to work, they still have an obligation to consider accommodations based on religious beliefs and disabilities.Religious BeliefsAs a few of my Littler colleagues pointed out in a recent white paper on this very issue, an initial concern involves the alleged failure to accommodate based on an individual’s religious beliefs. Here, employers must reasonably accommodate an employee’s sincerely held religious beliefs, observances, and practices when requested, unless accommodation would impose an undue hardship on business operations.  For instance, an employee may claim that they cannot comply with an employer-mandated vaccine because it conflicts with their religious or beliefs. When faced with an employee s request to be excused from such a requirement, employers must assess three questions: 1) is the belief religious? 2) is the belief sincerely held? and 3) would providing a reasonable accommodation impose an undue hardship on the employer?Reasonable Accommodation Because of a DisabilityEmployers may also have an obligation under the Americans with Disabilities Act (ADA) to allow certain employees to take a pass on the vaccine.  If an employee requests an accommodation from an employer’s COVID vaccine requirement because of a disability, the employer must determine whether the accommodation is a reasonable one and whether it imposes an undue burden on operations and on the health and safety of coworkers.  As with all ADA accommodation requests, employers will need to conduct an individualized assessment in each circumstance.Again, as my colleagues point out, even assuming that an employee’s disability “poses a direct threat to his own health,” the EEOC expects employers to explore potential reasonable accommodations absent an undue hardship.Start the Conversation NowAccess to a reliable COVID-19 vaccine is just around the corner.  And so are the accommodation requests. To avoid getting caught unprepared, it s best for employers to identify a plan now for handling these accommodation requests in the near future.Nothing ushers in the holidays like a COVID-related FMLA webinar.Join me for my annual FMLA webinar, which comes to you, as always, free of charge!When: Wednesday, December 9, 2020 (12:00 – 1:30 p.m. central time)Online registration: Click hereThe COVID-19 pandemic has left an indelible impact on the workplace, causing employers to deal with a wave of medical leaves and a shift to virtual workplace.  As a result, employers face a host of compliance issues in navigating leave and accommodation issues.In this complimentary webinar, my good friend and ComPsych’s Matt Morris and I will tackle the most common and difficult leave and accommodations scenarios that employers have encountered during the COVID-19 pandemic and will provide practical suggestions on how employers can address these situations.Through the use of case studies (and maybe a tiny bit of humor), we will cover:Is an employee who tests positive for COVID-19 eligible for FMLA leave?How to address an employee who has a generalized fear of returning to work because of the pandemicWhether FMLA leave applies when an employee claims they cannot return to work during the pandemic because they have an underlying medical conditionWhether an Employee can take FMLA leave to sit at home during a pandemic with a family member who is considered high riskIs physical presence at work critical anymore?  Handling work-from-home requests during the pandemicAnd, of course, we’ll sing. We’ll definitely sing.When you register (click here), please pose the most difficult question you want answered in this area, and we ll do our best to cover it during the webinar.Quick note:  This program has been submitted to the HR Certification Institute and SHRM for review and credit. Continuing Legal Education credit also will be available to attorneys attending the program.As we enter the home stretch of 2020 [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 provided under FFCRA actually has reduced the spread of COVID-19, yet another indicator that FFCRA may have life beyond 2020.Chances of an FFCRA Extension are LikelyHey, kids, try as we might, we can t wish this pandemic away. And while we re ridding ourselves of 2020 and toasting a New Year 2021, the pandemic surely will be our reality come January 1. As a result, there are plenty of reasons to believe Congress will act to extend FFCRA into the new year:The FFCRA enjoyed overwhelming bipartisan support. In March 2020, the U.S. House of Representatives passed FFCRA by a whopping 340-40 margin. The Senate gave it a thumbs up by a margin of 90-8.  Friends, this was passage of a paid leave law, a feat no Congress before it ever accomplished. Yet, in the wake of a national health crisis, Congress got its act together in mere days and overwhelmingly passed this bipartisan legislation. When it sinks in that the pandemic will continue to wreak havoc on American workers and their families after December 31 this year, it is not a stretch to conclude that Congress likely will act to extend FFCRA shortly before the Times Square ball drop.There is No Indication FFCRA has had a deleterious impact on American businesses. To be clear, I have no data to back up this statement. Anecdotally speaking, however, as I have counseled employers over the past eight months on this new law, I don t get any sense from them that the FFCRA has negatively impacted business. This reality makes it far more politically palatable for Congress to extend paid leave benefits to American workers.The Government already has signaled the pandemic will extend well into the new year. Notably, the U.S. Department of Health Human Services announced earlier this month that the Public Health Emergency declaration for COVID‑19 will be renewed for another 90 days, which began on October 23 (the date it was previously scheduled to expire) and will extend through January 20, 2021. Of course, this pronouncement is not dispositive of whether FFCRA will be extended, but it seems to be a strong indicator that the federal government has acknowledged we will remain in a pandemic for the foreseeable future and well 2021.Study Shows that the Availability of FFCRA Leave has reduced the Number of COVID-19 CasesCare for another reason why my money is on an extension of FFCRA? A recent study has shown that the availability of FFCRA leave actually has reduced the spread of COVID-19. On October 15, 2020, a study published in the Health Affairs Journal concluded that states which gained access to paid sick leave through FFCRA saw a statistically significant 400+ fewer confirmed COVID-19 cases per day.Let that sink in for a moment. 400+ cases per day.Led by Nicolas Ziebarth, Associate Professor in the Department of Policy Analysis and Management at Cornell University, the study, which is entitled, COVID-19 Emergency Sick Leave Has Helped Flatten The Curve In The United States, draws the following conclusions:There were statistically significant decreases in the number of reported new COVID-19 cases for states whose workers gained access to paid sick leave as a result of FFCRA.Specifically, there were 417 fewer reported cases per day in states where workers gained the option to take COVID-19-related sick leave through FFCRA.This data represents a reduction of about 1 new case per day for every 1300 workers who gained the right to take up to two weeks of paid sick leave due to COVID-19.As a result, the authors concluded that the availability to paid sick leave under FCRRA has helped flatten the curve. Avoiding 400 confirmed cases in every state each day? Even if the data is a fraction of this number, it s a compelling reason for Congress to extend FFCRA into 2021.But then again, what do I know?Hat tip: My colleague Stephanie Mills-Gallan, who alerted me to this study.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 of madness in your workplace.Let Me Remind You of the FactsNoemi Valdivia worked as a longtime executive assistant for Township High School District 214, a suburban high school district northwest of Chicago.  During six years of work, Noemi received excellent performance evaluations. Her supervisors described her as “extremely dependable” and an “invaluable resource,” and commented that her work was “immaculate” and “free from error.” The District later promoted Noemi to a similar position at a different high school within the District, reporting to Principal Angela Sisi.Shortly thereafter, Noemi s mental state began to deteriorate—she experienced insomnia, weight loss, uncontrollable crying, an inability to concentrate and exhaustion. On several occasions, she arrived late to work because she lacked energy, and left early because she could not control her crying. Noemi met with Sisi to discuss her emotional state, at which time she indicated that she felt overwhelmed and was having difficulty accepting new assignments because of her current state.  She described in detail what was happening to her, telling Sisi:I’m so confused. I’m not eating. I’m not sleeping. I’ve been losing weight. I’m so overwhelmed. I don’t understand what’s happening to me.Noemi had multiple conversations with Sisi describing in detail what she was experiencing. In one of these meetings, Noemi asked Sisi for a 10-month position as opposed to her current 12-month position, thinking that some time away from work might help. She also made clear that she was contemplating quitting her job for medical reasons and taking an offer of employment elsewhere.Noemi testified that, in response to her pleas, Sisi told her that she needed to decide whether she was staying or leaving. For reasons not entirely clear, Sisi denied Noemi s request to change positions, and she offered no help to Noemi, ultimately prompting Noemi to resign and accept employment elsewhere. Noemi later sought to rescind her resignation and pled for her job back, but Sisi denied the request.Ugh.At trial, the jury awarded Noemi $12,000 in back pay and a similar amount in liquidated damages. The real blow to the school district, however, is its obligation to pay Noemi s attorney fees totaling nearly $200,000. All in, this mess will cost the district more than $500,000 after it pays its own attorney s fees and costs of an appeal. Valdivia v. Sch. Dist. 214 (pdf)What an expensive lesson, huh?Insights for EmployersAt the end of every year, my friend and fellow employment blogger, Jon Hyman, solicits feedback on the worst employer of the year, and after a reader vote, he announces the winner.  For 2020, I might encourage Jon to add this employer to the list.Think about everything that went wrong here. If you were the boss:Wouldn t you have offered Noemi a leave of absence or an accommodation when she described her deteriorating mental health and told you she was so overwhelmed by work that she felt that she could not even accept any new assignments?If not, wouldn t you have asked Noemi how you could help when she told you I’m so confused. I’m not eating. I’m not sleeping. I’ve been losing weight. I’m so overwhelmed. I don’t understand what’s happening to me ?If not, wouldn t you have tried to identify a 10-month position (which is awfully common at a public school) when it was clear Noemi was struggling with a full-time position?If not, wouldn t you have asked How can we modify your job duties in some manner to help you succeed? instead of telling her that she needed to decide whether she was staying or leaving ?If not, then wouldn t you have tried to help in some way when Noemi cried uncontrollably on multiple occasions at work?A yes to any one of these questions likely would have avoided a costly lawsuit.  Instead of providing (and documenting!) an accommodation even a leave of absence to help Noemi perform her job, the school district accepted her resignation instead.What are the lessons here?Train . . . train . . . and train some more. When you read a fact pattern like this one, you re left with the conclusion that the employer has not trained its managers about their obligations under the FMLA and ADA. In ADA Training 101, you train a supervisor in this situation to engage the employee in a discussion about how we can help the employee perform her job. The school district would have been wise to spend a modest amount of money on FMLA and ADA training; instead, it found itself dealing out $500,000 in (presumably) taxpayer money to pay a judgment and attorney s fees in an FMLA case.At that training, be sure your managers understand the the importance of empathy when an employee is dealing with a mental health condition.  The far, far majority of our employees utilize FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee’s request for medical leave or workplace accommodation. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let’s not assume without any basis in fact that our employee is trying to misuse their leave of absence. This is particularly true with an employee like Noemi, who had an excellent six-year track record leading up to the situation outlined above.Where is HR? I suppose we again chalk this up to more FMLA/ADA training, but in scouring the court s decision, I don t find any hint of Human Resources involvement. When a supervisor faces a difficult situation like this one, it is critical that management partner with HR to ensure everyone is on the same page in terms of a response. Presumably, though not sure it worked here, HR would counsel a far more appropriate response to the employee. Managers, engage with your HR colleagues when you re faced with this kind of situation.FMLA Notice Doesn t Always Come in Words. There are an increasing number of cases in which courts have found that changes in employees behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. This case is a reminder that an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.Let Empathy be your guide. Where there are clear abnormalities in the employee’s behavior (particularly when the employee cries uncontrollably at work or resigns for medical reasons), it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show that you’re on the same side as the employee. If leave is the only option, it s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy. Instead of forcing the employee to choose between employment and resignation, an employer is best served by simply asking, “How can I help you? These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.About JeffJeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing employers. Jeff has two decades of experience advising and litigating on behalf of employers on a wide range of complex employment law matters and is a recognized leader on FMLA and ADA issues, helping employers develop comprehensive strategies to achieve compliance with employee leave and accommodation issues.Read More....Connect with JeffRSSLinkedInTwitter

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The FMLA Insights blog provides analysis on the Family Medical Leave Act for employers. Authored by Jeff Nowak, a recognized leader on FMLA and ADA issues.

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