Coronavirus (COVID-19) and Leave Updates

December 30, 2020

We’re almost to the end of 2020 and we wish things would automatically switch back to normal as of January 1st, but unfortunately that won’t be the case. We are cautiously optimistic and are hoping for a much better 2021. We’ll get there, one day at a time. We wish you a safe and happy New Year!

Federal Updates

Department of Labor (DOL) – Wage and Hour Division (WHD)

The WHD has released two Field Assistance Bulletins that provide guidance around FMLA and some of the changes that have occurred due to the COVID-19 pandemic.

FAB 2020-7 deals with posting requirements under the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), etc. In general, required notices are to be posted in a conspicuous place at the worksite. However, with the onset of COVID-19 and the mass migration to working remotely, the WHD considers posting requirements met if an electronic posting is as readily accessible as a hard-copy posting. Employers must take steps to inform employees of how and where to access electronic postings. If employers have employees both on-site and working remotely, it is recommended to maintain both methods of posting required notices.

FAB 2020-8 pertains only to FMLA and is specific to the use of telemedicine. Again, with the current pandemic and the added stress imposed on the nation’s health care system as a result, telemedicine is becoming more common. FMLA regulations state that treatment by a health care provider means an in-person visit to a health care provider. The WHD will now consider a telemedicine visit with a health care provider as an in-person visit if certain criteria are met. The telemedicine visit must include the following:

  • an examination, evaluation, or treatment by a health care provider;
  • be permitted and accepted by state licensing authorities; and,
  • generally, should be performed by video conference.

The guidance further confirms that a simple telephone call, letter, email or text message are insufficient by themselves, to meet the ‘in-person visit’ requirement.

You’ve likely already heard that the Families First Coronavirus Relief Act (FFCRA) has not been extended beyond December 31, 2020. President Trump signed the combined fiscal year 2021 omnibus appropriations and COVID-19 relief bill earlier this week. While obligations under the FFCRA will end after tomorrow for employers, they may still voluntarily continue to provide emergency paid sick leave or emergency paid FMLA leave under FFCRA and receive tax credits. The extension of the tax credit is only for leave taken through March 31, 2021 and only applies to employers subject to the FFCRA.

State Updates

California

Employment Development Department (EDD)

The EDD has released its 2021 Voluntary Plan General Release Letter. Additionally, the EDD has updated the following documents:

  • Notices to Employees (DE 1857A and DE 1858). Please note, DE 1857A is required to be posted in the workplace of employees who are covered by Unemployment Insurance and State Disability Insurance; DE 1858 is required to be posted in the workplace of employees who are covered only by Disability Insurance.
  • Paid Family Leave (PFL) pamphlet (DE 2511)
  • Disability Insurance Provisions pamphlet (DE 2515)

San Francisco

The Office of Labor Standards Enforcement (OLSE) will release the 2021 Paid Parental Leave Ordinance (PPLO) wage cap next month. Based on the calculation found in Article 33H, Section H.4 of the San Francisco Police Code, we are forecasting the cap to increase to $2,262. The amount of supplemental compensation is calculated by dividing the state’s maximum weekly benefit amount by the benefit percentage provided under California Paid Family Leave. We will let you know when the OLSE releases the final cap amount.

The Public Health Emergency Leave Ordinance (PHELO) has been extended through February 11, 2021. You can find updated FAQs here.

If you have any questions, please reach out to compliance_services@thelarkincompany.com.

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