In his recent address to Congress, President Biden touted two plans that would require employers to provide employees with paid leave. Here are the highlights:
American Families Plan
You can read the entire Plan summary here. https://www.constangy.com/assets/htmldocuments/American%20Families%20Plan.pdf The section addressing the paid leave provisions can be found on pages 8 and 9.
If the plan passes, when it is fully phased in employees would be entitled to take up to 12 weeks of paid leave per year for several reasons:
- The employee’s own illness
- The illness of a family member
- A new child
- Military deployment of a family member
- Treatment for or recovery from sexual assault, stalking, or domestic violence
Sounds a lot like paid FMLA leave to me. We do not yet know how the AFP will impact the FMLA.
The Plan is not clear about how much an employee would be paid. Right now, it appears as if employees would receive between 66% and 80% of their average weekly wages, with a maximum of $4,000 per month.
This Plan is likely to cost in excess of $500 Billion over 10 years.
This Plan will almost certainly pass if the Democrats are able to introduce it using the budget reconciliation process, which only requires a simple majority to pass the Senate. If they cannot use the budget reconciliation process, it is not as likely to pass in its current form.
Healthy Families Act
The HFA would require employers with 15 or more employees to provide employees with seven days of paid sick leave per year for specific reasons:
- Physical or mental illness, injury, or medical condition
- Obtaining a diagnosis, care, or preventive care
- Attendance at required meetings at a school which the employee’s child is attending because of a medical condition or disability
- Obtaining various types of assistance related to sexual assault, stalking, or domestic violence
You can read the entire 48 page Bill here: https://delauro.house.gov/sites/delauro.house.gov/files/documents/HFA%20117.pdf
Employer take away: Neither the American Families Plan nor the Healthy Families Act are yet law, so you do not have to take any immediate action. But, keep an eye out for further updates as they each make their way through the legislative process. If either of them pass in any form, it will require us to quickly revise our forms and practices.
In July, the DOL issued a couple of new Questions and Answers regarding the FMLA. One of them addresses the issue of whether a remote or telemedicine visit with a health care provider can qualify as an “in-patient” visit. As a rule, in order for a condition that does not require in-patient care to qualify as a serious health condition one must receive in-person treatment by a health care provider.
29 CFR Section 825.115(a)(3) provides:
(3) The requirement in paragraphs (a)(1) and (2) of this section (which require ‘treatment by a health care provider’) for treatment by a health care provider means an in-person visit to a health care provider.
Since the regulations clearly require an in-person visit, my initial thought was that the answer to this question would be “No.” Well, I was wrong. Q & A number 12 states:
12. Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.
So, until at least December 31, 2020, remote or telemedicine visits that meet the requirements above will qualify as in-person visits under the FMLA. All HR professionals who manage the application of their company’s FMLA program (and lawyers who think they know a thing or two about the FMLA), should make note of this change since it is going to expand the number of situations in which an employee will be eligible for FMLA leave.
Last week the DOL announced that it was issuing new optional FMLA forms. You can find the announcement, and the forms, here. https://www.dol.gov/agencies/whd/fmla/forms
The new forms contain some subtle differences and, as I said, they are optional.
As always, keep in mind that you cannot require an employee who has already provided you with certification documentation to fill out the new forms nor can you even require an employee to use any certain forms. Per the DOL: “An employer must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying.”
Yesterday, the DOL issued an opinion letter indicating that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed.
The child in question received “pediatrician-prescribed occupational, speech, and physical therapy provided by their school district.” Periodically, the parents, school administrators and the child’s speech pathologist, school psychologist, and therapists had IEP meetings to “review the child’s educational and medical needs, well-being, and progress.”
The DOL determined that the employee’s attendance at the IEP meetings constituted “care for a family member … with a serious health condition.” Care for a family member includes both physical and psychological care. As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b)
- This is not a radical expansion of the FMLA and in fact, follows a sparse but consistent line of cases and prior opinion letters protecting leave for meetings with caregivers.
- Employers must train their supervisors to spot this type of FMLA leave request. It would be easy for a supervisor to reject this request out of hand.
- Employers should require proper FMLA certification so that they can confirm that the leave is protected.
As most HR professionals are aware, the Fair Labor Standards Act (FLSA) requires that non-exempt employee be paid for rest breaks of up to 20 minutes. Contrary to the common misperception that the Act requires employers to allow two paid breaks per shift, in most industries, it actually does not mandate any certain minimum or maximum number of paid breaks per shift.
Conversely, the Family and Medical Leave Act (FMLA) require employers to allow employees short breaks when certified as necessary by a health care provider. Unless the employer specifies otherwise, FMLA breaks are usually unpaid.
You see the inherent conflict set up between the FLSA (you must pay for short breaks) and the FMLA (FMLA leave is generally not compensable working time). For example, if an employer allows its employees to take three paid, fifteen minute beaks per day, can it not pay an employee for taking one, fifteen minute FMLA-qualified break per day without violating the FMLA or FLSA? Will this constitute retaliation or interference under the FMLA?
Continue reading “The Perfect Storm: A Convergence of Unpaid Rest Breaks, the FLSA and the FMLA”
Those of you who have been losing sleep because the previously issued US Department of Labor FMLA forms had expired can rest easy. (You did know that they had expired, right?) The DOL has finally issued shiny new FMLA forms.
The new forms (WH-380-E, WH-380-F, WH-381, WH-382, WH-384, WH-385 and WH385V) can be located and downloaded from the DOL’s website here. For those of you who geek out on this kind of stuff, you should note May 31, 2018 on your calendars. That is the expiration date of the new forms. By then our federal government will have probably amended the FMLA again to further protect employee’s rights or intrusively over-burden employers, depending upon your point of view. Continue reading “US Department of Labor Releases New FMLA Forms”
In response to the U.S. Supreme Court’s holding in United States v. Windsor that section 3 of the Defense of Marriage Act is unconstitutional, the DOL has issued a NPRM to revise the definition of “spouse” under the FMLA. Continue reading “Department of Labor Issues a Notice of Proposed Rulemaking to Revise Definition of Spouse Under the FMLA”
The Department of Labor published a final rule amending Family Medical Leave Act regulations military leave last month. The new rule contains some noteworthy changes.
The new rule generally:
- Adds a new category of exigency leave for parental care (i.e., care for a military member’s parent when the parent is incapable of self-care);
- Expands from five to fifteen days the amount of R&R FMLA leave an eligible employee would be able to take to spend with a covered service person; and
- Clarifies rules for calculating intermittent and/or reduced schedule leave.
Continue reading “Department of Labor Issues New Regulations Regarding FMLA Military Leave”