While many of the laws and ordinances passed as a result of the COVID-19 pandemic are still in place, several through the end of the year, things have slowed down considerably. The focus has taken a turn and is now centered on reopening orders, guidance and recommendations. Myriad questions abound for employers who are now pondering when to return to the office. The number of current leave laws pale in comparison to the number of executive orders, directives, and restrictions for reopening with almost every state (and some cities and counties) providing their own rules.
The Department of Labor (DOL)
Interpretation of the Families First Coronavirus Response Act (FFCRA) continues on the part of the DOL with the release of additional FAQs (#89-93).
- This round of FAQs provide clarification for those who are employed with a temporary staffing agency (with more than 500 employees) and are placed with a business with fewer than 500 employees – is the employee eligible for paid sick leave or expanded family and medical leave under the FFCRA? The answer depends on if the second employer is considered a joint employer.
- An employee who has been working from home successfully while caring for children may still take paid sick leave and expanded family and medical leave. The requirements for leave do not change, but the DOL advises caution if an employer seeks an explanation from an employee as to what has changed with their circumstances.
- Further clarification has been provided for when an employee who is seeking medical care for COVID-19-related symptoms requests leave.
- Employees may not take paid sick leave or expanded family and medical leave to care for children when their school is closed for summer. If a childcare provider is closed during the summer due to a COVID-19-related reason, employees may be able to take paid sick leave and emergency family and medical leave.
Equal Employment Opportunity Commission (EEOC)
Not to be left behind by the DOL, the EEOC continues to update its technical assistance Q&A document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws. Questions G3, G4 and G5 provide information about the accommodation of employees with underlying medical conditions. If you are interested, the EEOC has consolidated a lot of great information here regarding COVID-19 and EEO laws.
As you may recall, benefits under the Massachusetts Paid Family and Medical Leave program will begin on January 1, 2021 except for family care leave which will be available July 1, 2021. The Department of Family and Medical Leave (DFML) is updating its regulations and the proposed draft regulation markup may be found here on the DFML website. Information regarding dates of required public hearings, the comment period on the regulations and the manner in which the public hearing will be conducted will be provided at a later date. The public will also be able to submit comments online – the form to do so will be released soon.
Back in March, we reported here that changes were made to the Paid Family and Medical Leave (PFML) program. The updated definitions went into effect immediately (as of March 25, 2020). The remaining changes will take effect on June 11, 2020 and include the following:
- No waiting period is required for qualifying exigency leaves.
- The waiting period begins the previous Sunday of the week when an eligible employee takes leave for the minimum claim duration.
- Eligible employees may satisfy the waiting period while simultaneously receiving paid time off for any part of the waiting period.
- Successive periods of family and medical leave caused by the same or related injury or sickness are now deemed a single period of PFML (previously, to be considered a single period of family and medical leave, the two periods had to be separated by less than four months).
- The ESD will not prorate or reduce an employee’s weekly benefit amount when the employee is receiving supplemental benefit payments.
- Supplemental benefit payments are defined as payments made by an employer to an employee as salary continuation or as paid time off;
- Paid time off is defined as vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.
- Employees have the option to file a private lawsuit against their employer to recover damages due to alleged violations of the PFML. Previously, employees were only able to pursue their complaint(s) through the Employment Security Department (ESD). Both options are available, but an employee may not file complaints in both simultaneously. In both cases, employees have three years from the date of the alleged violation to file suit or a complaint.
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