Archive for Medical Leaves

Emergency Paid Sick Leave and Emergency FMLA – What You Need to Know

The Families First Coronavirus Response Act (FFCRA), effective as of April 1, 2020, sets forth new requirements for employers regarding sick leave and family medical leave related to coronavirus (COVID-19). Here are the highlights of what you need to know and need to do as well as some links to more information.

Who is affected by the FFCRA?

All employers with 500 or fewer employees, both for-profit and nonprofit businesses.

What does it require?

FFCRA requires that covered employers provide to employees the following.

Emergency paid sick leave:

  • Two weeks (up to 80 hours) paid sick leave at the employee’s regular rate of pay when the employee is unable to work due to COVID -19 because the employee is
    • Subject to Federal, State, or local quarantined or isolation order;
    • Advised by a health care provider to self-quarantine, and/or
    • Experiencing COVID-19 symptoms and seeking medical diagnosis.

Note: The regulations interpret “quarantine or isolation orders” to include “a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” That being said, if a business closes because of a shelter in place order, either because its customers are required to stay at home or because the order forced the business to close, and the employee cannot telework, the employee is not eligible for paid sick leave under the Act (because the reason the employee cannot work is because the business was subject to the order, not because the employee was subject to the order). 

OR

  • Two weeks (up to 80 hours) paid sick leave at two-thirds the employee’s regular rate of pay when an individual has been employed at least 30 days and is unable to work because of a
    • Bona fide need to care for a quarantined individual, or
    • Care for a child (under 18) whose school is closed, or childcare provider is closed/unavailable due to COVID-19, or
    • Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Note: Part-time employees are eligible for the number of hours of leave that the employee works on average over a two-week period.

Expanded family and medical leave:

  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay when an employee is unable to work because of a
    • Bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable because of COVID-19.

Note: The expanded family and medical leave can be used intermittently between April 1, and December 31, 2020. For example, if employee does not have childcare for two of the five days of work, they can use the leave for those two days until the 10 weeks is used up or December 31, whichever comes first.

New posting required

All covered employers must post/provide to employees a Notice of FFCRA Requirements as follows:

  • Employers who are still open should print out the notice and post with other required notices.  Another option is to provide individual copies to employees.
  • Employers with staff working remotely may email the notice to all employees to meet the requirement.

Employee documentation required

FFCRA stipulates that employers must require that employees provide documentation in support of emergency paid sick leave, including:

  • Employee name
  • Qualifying reason for leave
  • Statement that the employee is unable to work, including remotely, for that reason
  • Dates of requested leave
  • Documentation of reason for leave, such as
    • Quarantine or isolation order
    • Name of health care provider advising employee to self-quarantine
    • Website post/email notice of school or childcare provider closure

For more information be sure to visit the following websites:

Federal laws may run concurrent with CA laws

California employers should keep in mind that state and local laws (city or county) related to sick leave and family leave may differ from federal law. Be sure you are complying with laws pertinent to your location and/or where you have employees as some of these laws run concurrently in certain circumstances.

Tax credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. Find out more information here.  For the most current information about the loan programs, visit the SBA coronavirus webpage, or go directly to the SBA loan application page. The Paycheck Protection Program (PPP) loans will also be available through most major banks in the coming weeks.

I am in the process of putting together additional resources to help you during this crisis. Stay tuned, and please feel free to reach out if you have questions.

Protecting Your Employees and Your Business During COVID-19

As the coronavirus pandemic (as officially declared by the World Health Organization) occupies our daily news feed, many business owners, non-profits and corporations are scrambling to figure out exactly what to do. In the case of small businesses or non-profits they may not have the luxury of telling their employees to work remotely for the next three weeks. On the other hand, they know that the health and safety of their employees is a top priority.

This blog is a summary of steps you may need to take to stay in compliance with employment law, protect your employees, and protect your business. This is an evolving situation, so we suggest checking the official websites we list below to stay informed of any recent updates. 

Stay informed and educate employees

  • Refer to the CDC (Center for Disease Control and Prevention), World Health Organization and OSHA for the latest information and guidance about the Coronavirus (COVID-19).   Certain county and states have taken additional steps to secure public safety.  Please check your local health department websites for specific regional information.
  • Educate employees on what is known about the virus and how to prevent the spread of illness.
  • Implement a communicable illness policy and response plan that may allow for flexible work and telecommuting, minimizing exposure between employees and with the public, and postponing or canceling large meetings or events.
  • Follow the CDC guidance on dealing with COVID-19 by actively encouraging sick employees to stay home. If an employee has acute respiratory illness symptoms, send them home immediately. It’s also important to provide information and training to employees on: cough and sneeze etiquette; proper hand hygiene (wash for at least 20 seconds); avoiding close contact with sick people; keeping hands away from their face; not sharing personal items with coworkers; using a tissue to open doors; and sanitizing workspaces. Also, provide hand sanitizer.

Review your sick leave policy especially if your business is either located in California or has employees working remotely in California

  • Allow employees to use paid sick leave for COVID-19 related illnesses.  However, under California law and in other jurisdictions, you cannot require quarantined workers to exhaust their paid sick leave.
  • Do not punish employees for using paid sick leave or for taking time off to care for a sick family member.
  • Make other paid leave available if sick leave is exhausted.
  • Consult local paid-sick-leave laws that may be more generous than the statewide law.

Inform employees of additional leave/benefits that may be available

Employees with serious conditions stemming from COVID-19 might be covered by The Family and Medical Leave Act (FMLA) or The Americans with Disabilities Act (ADA).  In California it’s important to keep in mind the California Family Rights Act (CFRA) and the California Fair Employment and Housing Act (FEHA). It’s important to consult your employment counsel as to whether any of these apply to an employee’s situation.

Employees who are unable to work due to COVID-19 exposure may be able to file a disability insurance claim with the EDD (Employment Development Department).   In CA, the EDD website has timely and important information on how employees can apply for unemployment insurance or disability coverage.  Here’s the link to the CA EDD website: https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

Bear in mind that although the EDD requires a physician’s certification, in the current environment medical professionals may be overwhelmed and unable to provide that certification in a timely manner. Allow some flexibility in the turnaround time for those certifications. Workers may also be eligible for unemployment insurance benefits if their work hours have been reduced by their employer or the company has temporarily shut down.

Along with health, safety and compliance issues, if you decide to offer telecommuting or require employees to work at a location other than their typical work situation, please be sure to review your company policies before making the change.  Also, be sure to keep in mind that you may have to consider wage and hour issues for non-exempt employees as it relates to reporting pay, travel pay and reporting time.

Most of all, remember that employers are responsible for maintaining a safe and healthy work environment for their employees.

This topic is top of mind for many individuals.  I suggest being proactive and letting employees know that as a company you are aware of the issues and you have a plan.  If you need assistance, please reach out to me.

Stay well! 

50 or More Employees? Here’s What You Need to Know

When your organization reaches 50 or more employees there are some additional federal, state and local laws you need to start following to ensure you are in compliance. Here are two important areas of compliance that affect employers with 50 or more employees.

Harassment Prevention Training

Since 2005 employers with 50 or more full-time, part-time, and temporary employees or independent contractors have been required to provide supervisory employees with two hours of sexual harassment prevention training within six months of hire or promotion, and once every two years thereafter. 

Under recently passed legislation, employers with five or more employees are now required to provide anti-harassment training to all employees – both supervisors and non-supervisors – every two years. California SB 1343 requires that all employees be trained by the end of 2019.  Training for non-supervisors must be at least one hour. Training for supervisors must be two hours.

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law that requires covered employers to grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons:

  • For the birth and care of the newborn child of the employee;
  • For placement with the employee of a son or daughter for adoption or foster care;
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

Companies fall under FMLA when they have 50 or more employees in any (not just consecutive) 20 calendar weeks of the current or preceding year.

Eligibility

Employees who satisfy certain criteria are eligible for Family or Medical Leave of up to 12 weeks during each rolling 12-month period in accordance with applicable law.  Employees eligible for Family and Medical Leave are those who:

  • Have completed 12 months of employment with their employer;
  • Have worked at least 1,250 hours for their employer during the previous 12 months; and
  • Work in a facility with at least 50 employees or in a facility where there are at least 50 employees within 75 surface miles.  Employees with no fixed work site will be considered to work from the site to which they report, or the site from which their work is assigned, or the site designated as their home base. 

NOTE: Companies must continue the same health plans in which the employee was enrolled before the first day of the leave at the same level and under the same conditions of coverage as if they had remained an active employee for the lesser of the duration of such leave or 12 work weeks. 

California Family Rights Act (CFRA)

The California Family Rights Act (CFRA) is very similar to FMLA and applies to employers in California.  CFRA allows eligible employees to take up to 12 weeks of unpaid job-protected leave during a 12-month period. 

CFRA covers private employers with 50 or more workers within 75 miles of the worksite, and public employers with any number of workers.  CFRA runs concurrently with FMLA.

CFRA was enacted to provide employees with work leave rights for reasons such as:

  • Birth of a child.
  • Placement of the employee’s child through adoption or in a foster care home.
  • A serious health condition incurred by the worker’s spouse, child, or parent. 
  • The employee is unable to work because of a serious health condition.

Eligibility

Employee eligibility for CFRA is similar to FMLA.  For both CFRA and FMLA, time off for sick leave, vacation/annual leave, administrative time off (ATO), compensating time off (CTO), holidays, informal time off (ITO) or personal leave (PL) are not to be counted toward the 1,250 hours of work.

Training Leave for Emergency Rescue Personnel

Employers with 50 or more people must allow temporary leaves of absence — up to a total of 14 days per calendar year—for employees who are volunteer firefighters, reserve peace officers and emergency personnel to engage in fire, law enforcement or emergency rescue training.

You cannot terminate, threaten with termination, demote, suspend or otherwise discriminate against an employee who takes time off to engage in fire or law enforcement training. An employee who suffers any of these consequences is entitled to reinstatement and reimbursement for lost wages and work benefits.  The employee can file a claim with the Division of Labor Standards Enforcement (DLSE).

San Francisco Paid Parental Leave

This San Francisco ordinance requires employers with 50 or more employees to supplement California’s Paid Family Leave (PFL) for employees working in the city.  The purpose is to allow employees to receive 100% of their gross weekly wages while on a parental leave of absence.  PFL currently provides eligible employees with up to 55% of their regular wages.  Employees may receive these benefits for up to six weeks in a 12-month period.  San Francisco’s law requires covered employers to provide additional wage replacement benefits of up to 45% of the employee’s wages, subject to the weekly maximum.

Please contact me at michelle@connecttohr.com for more information about what you need to consider as a business with 50 or more employees.

Family and Medical Leaves – A Refresher

On July 1, new regulations under the California Family Rights Act (CFRA) go into effect to align more closely with the federal Family and Medical Leave Act (FMLA). I thought this might be a good time to do a little refresher on FMLA, especially for those of you who have employees outside of California. I discussed the changes to the CFRA in a previous blog. Note that there are still some differences between CFRA and FMLA, so be sure you are familiar with both.

The Family and Medical Leave Act entitles eligible employees of “covered employers” to take unpaid, job-protected leave for up to 12 workweeks in a 12-month period for specified family and medical reasons. FMLA “covered employers” refers to private sector employers with 50 or more employees; public agencies regardless of the number of employees; and public or private elementary or secondary schools, regardless of number of employees.

To be eligible for a leave under FMLA, an employee must have worked for the covered employer for at least 12 months and must have completed at least 1250 hours of service for the employer during the 12-month period immediately preceding the leave.

Eligible employees may take a leave under FMLA for one or more of the following:

  • The birth or adoption of a child
  • To care for an immediate family member who has a serious health condition
  • For a serious personal health condition that prevents the employee from performing the essential functions of his or her job
  • For a qualifying event when a spouse, son, daughter or parent is a military member on covered active duty

Additionally, an eligible employee who is the spouse, son, daughter, parent or next of kin of a service member with a serious injury or illness may take up to 26 workweeks of leave during a single 12-month period to care for that covered service member.

FMLA requires that covered employers:

  • Post a notice explaining rights and responsibilities under FMLA
  • Include FMLA information in the employee handbook or provide information to new hires
  • Provide requesting employees with a notice of eligibility, rights and responsibilities under FMLA
  • Notify employees who take an FMLA leave of the amount time that will be deducted from their FMLA entitlement

On return from an FMLA leave, the employee must be restored to his or her original job or an equivalent job with equivalent pay, benefits and other terms and conditions of employment. Using the leave cannot be counted against the employee’s attendance. Also, employers are required to continue group health coverage for employees on FMLA. Find more information about FMLA here.

Be sure you have updated your employee handbook to reflect the new CFRA regulations and that you are routinely providing employees with the required notices. If you need assistance with updating your handbook, please contact me.

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