Important Return-to-Work Guidance Under the Families First Coronavirus Response Act: What Employees and Employers Need to Know

Last week, we reported on the U.S. Department of Labor’s (DOL) changes to streamline optional-use forms for workers to use when requesting FMLA leave. Most recently, on July 20th of this week, the DOL has published additional guidance for workers and employers regarding the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) and their affect in the workplace during the coronavirus.

The Wage and Hour Division (WHD) published updated guidance and materials for both employees and employers as well as answers to commonly asked questions about paid sick and expanded family and medical leave under the FFCRA. The FCRA provides emergency paid sick leave, and paid family leave under the FMLA for certain workers affected by COVID-19. Employers of fewer than 500 employees are required to grant up to 80 hours of paid six leave to workers exposed to COVID-19, required to quarantine, or unable to work or telework because of the closure of their child’s school or place of care.

The recently issued guidance states that if an employee was eligible for extended FMLA leave, and used four weeks of leave before being furloughed, they are still entitled upon their return to work to the remaining eight weeks of leave. That means that the period of time the employee was on furlough does not count against their FFCRA/FMLA leave entitlement.

The guidance provides that while employees returning to work after paid FFCRA leave are entitled to be restored to their same or equivalent position, an employer can bring the employee back to work in a position requiring less interaction with co-workers, or require them to telework.

Another highlight from the updated guidance is the fact that employers shall not discriminate or retaliate against employees for their use of FFCRA leave. Employers may not use the anticipated need for FFCRA leave upon reopening as a negative factor in an employment decision.

You can access the following materials using the links below:

As more employees are returning to the workforce, it is critical that both workers and employers understand common issues they will be faced with when responding to COVID-19, its effects on wages and hours worked under the FLSA, as well as job-protected leave under the FMLA.

With more guidance on the way, it is important for employers to seek counsel given the complexity of these federal regulations and their impact on state and local laws. Please call Vandenack Weaver to speak with an attorney at 402-504-1300 or info@vwattys.com for guidance.

VW Contributor: Skylar Young
© 2020 Vandenack Weaver LLC
For more information, Contact Us

U.S. DEPARTMENT OF LABOR ANNOUNCES ENHANCEMENTS TO ASSIST EMPLOYEES, EMPLOYERS AND OTHER STAKEHOLDERS IN USE OF FAMILY AND MEDICAL LEAVE

Today the U.S. Department of Labor’s Wage and Hour Division (WHD) announced significant steps to streamline optional-use forms that workers can use to request, and employers can use to coordinate leave under the Family Medical Leave Act (FMLA). Cheryl Stanton, the WHD administrator, stated that “The improvements we announced today reflect the ongoing commitment of the U.S. Department of Labor’s Wage and Hour Division to support workers’ families and those who employ them at a time when they need it most.”

The WHD’s new forms include more questions that users can answer by checking a response box and now feature an electronic signature to reduce physical contact and help mitigate the risk of COVID-19 transmission. These revisions were influenced by substantial public input and will hopefully reduce the time users spend providing information, as well as improve communications between leave applicants and administrators.

In general, the FMLA entitles eligible employees of covered employers to take up to a total of 12 workweeks of job-protected, unpaid leave, or to substitute accrued paid leave, during a 12-month period for the following reasons:

  • The birth of the employee’s child;
  • The placement of a child with the employee for adoption or foster care;
  • To care for the newborn or newly-placed child;
  • To care for the employee’s spouse, parent, son, or daughter with a serious health condition;
  • When the employee is unable to work due to the employee’s own serious health condition; or
  • For any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered activity duty.

The new Families Care First Coronavirus Response Act (FFCRA), which ensures that workers are not forced to choose between their paychecks and taking appropriate precautions by way of health and safety measures, includes temporary amendments to the FMLA. This expanded family and medical leave entitlement became effective April 1, 2020 and will expire on December 31, 2020.

The Department of Labor (DOL) is also seeking information from the public regarding the regulations implementing the FMLA. This Request for Information (RFI) will enable the DOL to gather information concerning the effectiveness of the current regulations. The current RFI does not include comment on the FMLA protections under the FCRA. Current information about the FCRA can be accessed here. If interested, you can submit comments on the Federal eRulemaking Portal. All comment submissions must include the agency name and Regulatory Information Number (RIN 1235-AA30) for this RFI.

VW Contributor: Skylar Young
© 2020 Vandenack Weaver LLC
For more information, Contact Us