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Posts Tagged ‘Family and Medical Leave Act’

U.S. Department of Labor Issues COVID-19 Guidance on FLSA and FMLA

Posted on: March 20th, 2020

By: Catherine Scott

As the federal government continues to grapple with questions from employers regarding COVID-19, the federal agencies have begun to roll out new guidance. The latest comes from the U.S. Department of Labor (DOL), which has issued guidance for employers seeking answers concerning their obligations pursuant to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA).

DOL Guidance for FLSA

The FLSA provides rules and regulations concerning how employees must be paid, including the payment of wages and overtime. Employers around the country have wrestled with whether they can reduce salary and/or hours or furlough or lay off employees as the economy slows down due to COVID-19 and whether employees are required to be paid and in what manner.

The DOL has answered several frequently asked questions concerning these issues. The latest guidance provides as follows:

  • For non-exempt, hourly employees, employers can reduce their hours and/or pay, so long as minimum wage and overtime requirements are met. Non-exempt, hourly employees also can be placed on an unpaid leave of absence or furlough or be laid off due to an economic slowdown;
  • For exempt employees, employers are generally required to pay these employees their full weekly salary if any work is done during the workweek (subject to exceptions, such as when the employer is open for business and an employee, who has no PTO remaining or hasn’t qualified, misses an entire day of work).  Of course, exempt employees can be required to use any accrued, unused vacation or paid time off under the FLSA for any missed time so long as they are still being paid their salary.
  • All employees must generally be paid for telework performed at home, subject to the limitations described above;
  • Employees of private organizations are generally not allowed to volunteer their normal services without pay, subject to a few limited exceptions. Employees may volunteer for public organizations without pay if they (a) perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation; (b) offer their services freely and without coercion, direct or implied; and, (c) are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.

Pay issues can be complicated and very fact-specific (and state-specific) so if you have a question about furloughs, layoffs, or schedule or compensation reductions (whether temporarily or permanently), please contact us so we can assess the individual factual and legal circumstances of your situation.

DOL Guidance for FMLA

Similarly, employers have wrestled with their obligations under the FMLA and whether they must provide job-protected leave to employees who need time away for a qualifying reason.  Initially, it is important to understand that any employer that has between 50 – 500 employees should first familiarize itself with the Families First Coronavirus Response Act as that Act (which will be effective April 2, 2020) substantially expands some of the obligations traditional imposed on employers under the FMLA.  For those employers, however, that are below 50 or above 50 employees, you should keep the following principles in mind in dealing with the Coronavirus.

  • Employees who develop complications from COVID-19 may have a “serious health condition” that would trigger FMLA leave. The same is true of a “family member,” defined by the FMLA as a spouse, child, or parent, who develops complications from COVID-19;
  • However, leave taken by an employee to avoid exposure to COVID-19 would not be covered by the traditional principles of the FMLA;
  • The traditional FMLA does not currently cover employees who require leave to tend to healthy children or children who have been dismissed from school or childcare by their state governments;
  • The traditional FMLA provides only for unpaid leave to employees who qualify; however, the FMLA allows for employees to substitute paid leave in place of unpaid leave in certain circumstances and if the employer’s policies provide for such paid leave;
  • Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.  In addition, employers may require employees to provide:
    • medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic recertification;
    • second or third medical opinions (at the employer’s expense);
    • periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
    • consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.)

The Department of Labor is generally encouraging employers to be flexible in dealing with situations involving employees affected by COVID-19, including re-examining both paid and unpaid leave policies in place at the employer and allowing paid telecommuting to occur.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

DOL Guidance Says Employers Cannot Exhaust Paid Leave Prior to Beginning Employee’s FMLA Leave

Posted on: March 18th, 2019

By: Brent Bean

The U.S. Department of Labor issued an opinion letter on March 14, 2019, re-affirming its view that employers must start the clock on an employee’s FMLA leave when the employer first learns the absence qualifies as a serious health condition under the FMLA.

The Opinion Letter specifically addressed the question of whether an employer can delay the designation of FMLA leave until after an employee first uses any paid leave the employee has accrued. Answering this question, the DOL emphasized that, once an employer has enough information to conclude that the leave is covered by the FMLA, it must designate such leave with 5 days. In issuing its answer, the DOL made clear that, even if an employee desires to delay the designation of FMLA leave so it can first use accrued paid leave, the employer is not permitted to do so.

Rather, as the Labor & Employment Group at FMG has long emphasized to our clients, if an employee has accrued paid leave, it should simply count any paid leave against the FMLA 12-week entitlement (in other words, simultaneous exhaustion of paid leave and FMLA leave). For instance, if an employee has 6 weeks of paid sick leave and wants to take 10 weeks of FMLA leave, the first 6 weeks of the FMLA leave will be paid and the remaining 4 weeks will be unpaid. When the employee returns from the 10 weeks of FMLA leave, the employee, having used his/her 6 weeks during FMLA leave, will have no more paid sick leave until the employee begins to accrue new paid sick leave time.

Not only does the DOL’s Opinion Letter reiterate that FMLA leave will always run from the date the employer learns the leave qualifies, it also clarifies the DOL’s position with respect to a 2014 Ninth Circuit opinion that permitted an employer to decline FMLA leave in favor of paid time off.  See Escriba v. Foster Poultry Farms, 743 F.3d 1236 (9th Cir., 2014).

In Escriba, the plaintiff requested leave to help her ill father in Guatemala. And when she asked for leave, she specifically requested that she be allowed to use vacation time instead of FMLA leave time for her trip. She then left for Guatemala but didn’t contact the company again until 16 days after she said she would return. When she returned, her employer notified her that it had terminated her as she had violated its three-day no-call, no-show rule. After she was fired, the plaintiff filed a lawsuit claiming FMLA interference, saying that informing her supervisors about her father’s illness should have triggered FMLA protection. The court held that the employee can delay the use of FMLA leave by opting instead to first use paid leave (even if the leave is related to an FMLA-qualifying condition).

The DOL Guidance provides that the rule in Escriba would no longer apply. Employers must designate FMLA leave once they have enough information to conclude the leave is covered and, if the employee desires to use some other form of paid leave, that leave would run concurrently.

If you have any questions or would like more information, please contact Brent Bean at [email protected].

To FMLA or not FMLA, that is the question…

Posted on: November 10th, 2017

By: Christopher M. Curci

FMLA and ADA leave questions are some of the most frequent that we receive from our clients.  Deciding whether an employee’s absence should be designated as FMLA leave, or granted as a reasonable accommodation under the ADA, is a legal land mine.

Fortunately, at least one federal judge in Pennsylvania recognizes the employer’s dilemma.  In Bertig v. Julia Ribaudo Healthcare Group, LLC, the employee suffered from bladder cancer and asthma, which are disabilities under the law.  She requested and was granted one month of FMLA leave in May of 2012.  She returned to work in June of 2012 as planned.

Beginning in April of 2013 and continuing through April of 2014, the employee called out sick thirteen times for various reasons, such as foot pain and a sore throat. She was terminated for violating the company’s attendance policy.  The employee filed suit alleging that she informed management that her absences were related to her disabilities, therefore her absences should have been designated as FMLA leave.  She also brought a claim for failure to accommodate her disabilities under the ADA.

The Court ruled in favor of the employer. The employee admitted during her deposition that ten of her thirteen absences were unrelated to her disabilities.  Because her absences were not disability-related, her termination did not violate the FMLA or ADA.  But, the most important takeaway in this case is the Court’s implication that the employer was not obligated to make further inquiry as to whether those absences were related to the employee’s disability before it made the decision to terminate her employment.  That burden fell on the employee given the totality of facts here.

While this decision is very fact specific, it is nonetheless a win for employers who struggle with FMLA/ADA leave requests. Just because an employee took FMLA leave in the past for a disability does not necessarily mean that the employer has a burden to inquire whether subsequent absences are related to that disability – especially when the absences occurred ten months later and the employee gives non-disability related reasons for the absences.

All employers should have written FMLA and ADA policies advising employees of their FMLA and ADA rights, and should document reasons for employee absences. Christopher M. Curci represents employers in litigation and advises his clients on all aspects of employment law.  If you need help with this or any other employment issues, he can be reached at [email protected].