On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
LAWSUIT PREVENTION FOR EMPLOYERS
On April 6, 2020, the U.S. Department of Labor (hereafter, “DOL”) issued final regulations interpreting two constituent components of the Families First Coronavirus Response Act (“FFCRA”). These are 1) the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and 2) the Emergency Paid Sick Leave Act (“EPSLA”). What follows are answers to pertinent questions commonly asked in recent weeks.
- Can employees take EFMLEA Leave to care for a “child” over 18?
If a “child” is 18 or older, and is incapable of self-care due to a mental or physical disability, the employee may take EFMLEA to care for him/her if the school or day care is closed or the day care provider is unavailable due to COVID-19.
- Is an employee eligible for paid leave if he/she has been advised to self-quarantine but is otherwise able to perform tele-work?
No. If an employee is under self-quarantine but is otherwise able to work, the employee is not “unable to work” and therefore is not eligible for EPSLA paid leave (sick leave).
- Is an employee eligible for paid leave if he/she is experiencing symptoms but is not seeking a medical diagnosis?
No. Employees are eligible for EPSLA paid leave (sick leave) for the time spent making, waiting for, or attending an appointment for a COVID-19 test. They are not entitled to paid sick leave if they are choosing to self-quarantine without seeking a medical diagnosis. However, eligibility for paid sick leave includes awaiting the results of the COVID-19 test.
- Is an employee eligible for EPLSA leave (sick leave) to care for a son or daughter, provided there is another individual also caring for the same child?
No. Under the regulations, an employee does not qualify for EPSLA leave if another suitable individual is available to care for the employee’s child.
- What are an employer’s obligations to notify employees of their rights under the FFCRA?
Covered employers must post the DOL notice on the law’s requirements. The DOL issued a model notice, which employers may download at https://www.dol.gov/whd.
- What are an employee’s obligations to notify an employer of his/her need to take leave under the FFCRA?
- Employers may require employees to follow reasonable notice procedures as soon as practical after the first workday or portion of the workday for which an employee receives EPSLA (sick leave) to qualify for leave.
- An employee requesting paid sick leave based upon a Federal, State, or local quarantine or isolation order must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
- If an employee is requesting paid sick leave because a health care provider advised him or her to self-quarantine for COVID-19 related reasons, the employee must provide the name of the health care provider.
- An employee requesting paid sick leave to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.
- An employee requesting to take EPSLA leave (sick leave) due to the closure of the child’s school or day care or due to the unavailability of the child care provider or EFMLEA must provide the employer with: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or is unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
- Does an employer need to continue coverage under its group health plan for an employee who takes either EFMLEA or EPSLA leave?
Yes, employees are entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave during the period of absence covered by the law.
- Can I receive benefits under FFCRA even though I am tele-working?
No, an employee is considered to be able to tele-work if: (a) his or her employer has work for the employee; (b) the employer permits the employee to work from the employee’s location; and (c) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work. Tele-work is not compensated as paid leave under the EPSLA or the EFMLEA. Employees who are tele-working for COVID-19 related reasons must be compensated for all hours actually worked and during which the employer knew or should have known the employee was working.
- What is the paid benefit under the EFMLEA (expanded family leave)?
After the initial two-week unpaid period of EFMLEA leave, the employer is required to pay two-thirds of the eligible employee’s average regular rate, times the scheduled number of hours for each day of such leave taken up to a maximum of $200 per day and $10,000 in aggregate per employee.
- Are commissions, tips, and piece rates included in calculating an employee’s regular rate of pay for purposes of the EFMLEA and EPSLA?
Yes, an employee’s commissions, tips, and piece rates are incorporated into the regular rate for purposes of FFCRA to the same extent that they are included in the calculation of the regular rate under the FLSA.
- What is the maximum amount I will have to pay employees under FFCRA?
An employer is not required to pay more than $511 per day and $5,110 in the aggregate per employee to an employee who takes EPSLA leave for his or her own COVID-19 related reason. When an employee takes leave to care for another individual, or to care for his or her son or daughter as a result of a closure of school or daycare or other unavailability of care taker pay to the employee is capped at a maximum of $200 per day and $2,000 in the aggregate per employee.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 38 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.