Emergency Go away Operating Out: What If Staff’ Children Are Nonetheless Not Again To College?

In March 2020, Congress expanded the allowable use of leave under the Federal Family and Sick Leave Act (“FMLA”) to allow employees in companies with fewer than 500 people to receive FMLA emergency leave as a related qualifying need with a public health emergency. if the employee has to look after a child under the age of 18, if the school or the child care facility is closed, or if the child’s carer is not available.[1]

The legislation, also known as the EPSLA (Emergency Paid Sick Leave Act) and the Family Vacation and Medical Leave Extension Act, was enacted under the law commonly known as the First Coronavirus Response Act for Families (“FFCRA”).

The pandemic continues – and so does the need for vacation

Now, around nine months later, the employees either no longer have vacation time or are already exhausted. However, many children, especially in parts of the country hardest hit by COVID-19, are not yet allowed to return to school or are returning on a hybrid schedule with only part-time classes at school.

Parents and carers have few options to protect their families during the ongoing public health emergency. What can employers do to answer these questions? The answers are not clear enough according to the applicable laws. And there are no federal bills in the pipeline that would answer those questions.

The federal emergency provisions are currently treated like sheltered leave under the FMLA. And at the end of each vacation, the employee has the right to return to the same or almost equivalent job as the Ministry of Labor in the FAQs issued in the course of the FFCRA.

Continued flexibility encouraged

But what happens when the employee’s emergency leave has expired and schools remain closed? There is no definitive guide on how to respond to this circumstance.

Given the language and intent of both state and federal vacation laws, and the lack of existing guidelines, a prudent approach to working with staff responding to continued school closings is to use your existing policies and procedures to allow continued flexibility.

For example, employers should already have a reasonable accommodation process under the Americans with Disabilities Act (and its various state analogues) that could be relied on to provide a structure for responding to the continuing needs of parents. This means that although the worker’s place of work would not be “protected” under the FMLA at the end of their FFCRA leave, the employer could provide some additional unpaid leave as reasonable accommodation based on the fact that the worker’s children do can’t go back to school.

Similarly, the Ministry of Labor has encouraged employers to “review their vacation policies to consider greater flexibility for their workers and their families” and to remind employers that this vacation policy cannot be discriminatory.

Similar to the treatment of expired vacation under the FMLA and ADA, the employer should be careful about letting an employee go after the vacation entitlement expires. Instead, the employer may consider going through an interactive process with the employee to see if an appropriate adjustment can be made – such as extra time off, a changed schedule, or a work-at-home arrangement – to deal with it To take care of Someone who is sick, to look after children whose schools are remote or to protect themselves because they may belong to a risk group and are afraid of returning to work.

In particular, if an employee informs the employer that the schools are scheduled to reopen in the coming weeks, the employer may want to consider a short continuation of the existing vacation or a changed work schedule.

Prevention of potential litigation

Given the new landscape of these topics, it’s not surprising that COVID-related lawsuits are on the rise, including lawsuits alleging discrimination and retaliation. Before an employer takes any action in relation to an employee who is on vacation (or recently returning from vacation), the employer must carefully consider all options, including changing work schedules, extending vacation or returning employees to another Position than her previous role.

Employers should avoid terminating the employee’s employment at the end of a sheltered vacation without first communicating with the employee, as this could result in a retaliatory lawsuit for vacation use. As with the FMLA, ADA, and most state discrimination laws in general, there is no straightforward test of whether a particular housing request should be granted, and employers should analyze the circumstances of each employee on a case-by-case basis.

Don’t forget to think twice Implications for state and local law

Complicating matters even further are state and local laws and regulations that may require employers to provide additional vacation for similar reasons, including general “sick leave” laws that existed prior to COVID-19. For example states like, but not limited to: Arizona, California, Massachusetts, Michigan, and New Jersey have general paid vacation laws that continuously cover employee school closing leave.

Additionally, the list of transitional and COVID-19 paid sick leave laws that cover absences related to school and childcare closings now includes more than 30. Some notable, non-exclusive examples employers should look out for include:

· · Colorado Healthy Families and Workplaces Act offers up to 48 hours of general paid sick leave and, depending on certain factors, up to 80 hours of additional paid public health leave for issues related to public health emergencies, including the need to care for children when there are schools or childcare providers to.

· · Nevadas Paid Vacation Act The insured employers have to grant up to 40 hours of paid time off per year for whatever reason and can now also be used for COVID-19 related vacation days.

· · Los Angeles’ youngest Additional Law on Paid Sick Leave requires paid vacation when an employee needs time off to care for a family member whose school or carer is unavailable due to COVID-19.

· · San Francisco’s family-friendly workplace ordinance Employers need to engage in a formalized process to provide flexible and predictable schedules based on family responsibilities, including the need to look after children who are out of school.

· · Cook County, Illinois’ Deserved sick leave regulation The insured employers must allow up to 40 hours of paid sick leave per year for various reasons, even if the worker’s school or care facility is closed by a federal, state or local civil servant.

Careful employers should review these and other state, city, and regional mandates to determine if the law extends sheltered leave beyond what was originally provided under federal requirements.

It remains a major challenge to continue to work through various federal, state and local vacation laws, including those that emerged prior to the COVID-19 pandemic. Seyfarth remains ready to help companies comply with these laws and other COVID-19 issues. If you have any questions, please contact one of the authors or a member of our COVID Task Force.

Click to stay informed about developments in paid sick leave in COVID-19 and beyond Here to sign up for Seyfarth’s Paid Sick Leave mailing list. Businesses interested in Seyfarth’s paid sick leave survey should contact us [email protected]

Coby Turner is a partner at Sefarth Shaw LLP, the offers clients worldwide advisory, litigation and transactional law services. Josh Seidman and Ryan McCoy are employees of the company.