Coronavirus (COVID-19), HR Management & Compliance

Family Leave Policy Considerations During, After COVID-19

As COVID-19 continues to change the face of the world, U.S. employers and their HR teams have been confronted with a variety of new personnel challenges. One of the many issues the pandemic has highlighted is the changing landscape of family leave protections and policies in the United States.

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The United States is the only developed country that does not guarantee paid parental leave to all workers. More and more states are passing or considering passing family leave laws in an effort to rectify this. Importantly, the new Families First Coronavirus Response Act (FFCRA) includes provisions that provide some workers with both paid sick leave and paid family leave through the end of the year.

As we ramp up for a potential second wave of pandemic-related illnesses and lockdowns this fall and winter, it is imperative for companies to understand the FFCRA and implement its requirements properly. The relevant portion of the law is effective from April 1, 2020, through December 31, 2020, and it includes some essential components to be aware of.

What Are Your Company’s Paid Leave Legal Obligations?

In general, the FFCRA provides that employees of covered employers are eligible:

  • For 2 weeks (up to 80 hours) of paid sick leaveat the employees’ regular rate of pay where the employees are unable to work because of being quarantined or sick with COVID-19 symptoms;
  • For 2 weeks (up to 80 hours) of paid sick leaveat two-thirds the employees’ regular rate of pay (capped at $200 per day) if the employees must care for an individual subject to quarantine or a child whose school or place of care is closed or unavailable for reasons related to COVID-19; or
  • For up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employees’ regular rate of pay (again, capped at $200 per day) where employees who have been employed for at least 30 calendar days must stay home to care for a child whose school or place of care is closed for reasons related to COVID-19.

 Additional details can be found here.

Do Requirements Differ for Large and Small Companies?

Not all things are equal when it comes to which companies are subject to the FFCRA. Size is key. If your business employs more than 500 people, it is exempt (though the regular Family and Medical Leave Act (FMLA) would still apply).

If it employs fewer than 50 people, it may be exempt if the employer can show that providing leave due to school closings or childcare unavailability would jeopardize the viability of the business.         

Must Employers Offer Family Leave for Summer Child Care?

Even if employees are not personally ill or caring for family members affected by COVID-19, they may be experiencing a lack of childcare options due to federal and state guidelines and requirements for camps and day cares aimed at reducing the spread of the disease.

Under the FFCRA, employees can legally request paid family leave during the summer if day care or camps do not reopen or can no longer accommodate their child due to new limitations on group size.

Note that there is some ambiguity in the wording of the law with regard to schools being “closed or unavailable.” Even if a school or day care is open, an employee might still be unable to bring his or her child/children if they are under a stay-at-home or quarantine order.

How to Handle Paid Leave Requests Equitably

As workplaces reopen, employees may balk at returning for a variety of reasons. It’s important to have clear protocols for reviewing paid leave requests in place. This ensures fair and equitable responses and helps avoid potential unfair treatment or discrimination claims down the road.

First, you need a formal request form and uniform criteria. Then, you must apply the family leave policy neutrally and objectively. Watch for unconscious bias. If you ask one employee for a doctor’s note or letter from a childcare provider, be sure to ask the same from all employees.

Be aware of how you might be treating employees differently. For example, if you are unconsciously more suspicious of minority groups and you do more research or double-checking of the requests of someone in a protected class, you could run into trouble if someone brings a claim.

It is unfair and discriminatory if a supervisor calls the school or does a Google search of school status only when Black employees request leave but not white employees. This is one of many examples of how implicit bias and antidiscrimination training for HR and management is so important.

Last, it is worth remembering that this paid leave is not being paid by the employer but by the government to help employees and businesses. If a request seems reasonable and the law appears to apply, there are few drawbacks to acting in good faith in accordance with the law and honoring it.

When You Have to Say No

An employee needs to have one of the delineated reasons in the FFCRA for not returning to work. Being generally afraid of COVID-19 doesn’t qualify a person for leave under the FFCRA (though other laws, such as the Americans with Disabilities Act (ADA) or state-level antidiscrimination, may apply, depending on the nature of the fear and any related diagnosis).

If you deny an employee’s request for paid family leave or let an employee go for not returning to work during COVID-19 due to family or medical obligations, you could face retaliation claims. Be extremely careful about following the letter of the law and/or your own written policy. Consult with an experienced employment attorney if you are unsure about the appropriate course of action.

Looking Ahead: Should You Develop Your Own Paid Leave Policy?

Some companies may wonder if they should be proactive and develop their own paid family leave policy instead of waiting for state or federal legislation. Companies like Spotify, Microsoft, Facebook, and Twitter have all enacted their own very generous parental and family leave policies. Many believe this is not just the right thing to do but also a smart business decision that improves a company’s reputation and helps with recruiting, particularly among competitive industries.

Where to Get Help with Questions About Implementing the FFCRA and Family Leave

Most state and federal departments of labor publish useful guidance, and this is a good place to start. However, there are many detailed requirements and nuances to consider under the FFCRA. Failure to comply with this and other employment laws can have significant costs, and litigation is not only expensive but also distracting.

Additionally, the FFCRA intersects with state-level employment laws, as well as other federal laws such as the FMLA and the ADA—and understanding how they work together is incredibly important when you are facing personnel decisions. When in doubt, seek advice from an experienced employment attorney who can assist with your precise circumstances and help you avoid unnecessary litigation.

Leni PlimptonLeni Plimpton is an associate at Fortis Law Partners and specializes in labor and employment litigation. She has experience with Equal Employment Opportunity Commission charges, mediations, arbitrations, settlement negotiations, pretrial practice, trial, and appeal. Plimpton has specific expertise in issues arising under the ADA, Title VII discrimination and harassment claims, the Colorado Anti-Discrimination Act, misclassification issues, wage and hour (Fair Labor Standards Act (FLSA)) claims, and the National Labor Relations Act and traditional labor law matters.

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