Check Your Call-In Policies

A recent Third Circuit Court of Appeal decision provides great guidance on what a good call-in policy can look like. In this case the employer, Penn State Health, utilized a call-in policy that required employees to make two calls when they wanted to request FMLA leave: First, an employee had to call to a designated “call-off” line, and second, the employee was required to call the Company’s third-party administrator to report the need for FMLA leave.

In this case the employee, Ms. Kelly, failed to call one of the lines and consequently earned disciplinary “points”. When she reached the maximum allowed points, her employment was terminated.

Ms. Kelly sued Penn State Health alleging that her employer had retaliated against her for requesting FMLA leave and interfered with her ability to take FMLA leave. The District Court held that Ms. Kelly’s failure to comply with the Hospital’s absence-reporting policy defeated all of her claims, in part because she offered no reasonable explanation for her failure to follow them. In doing so, the District Court specifically stated that: An employee must comply with the employer’s requirements for requesting leave, unless those requirements conflict with a substantive provision of the FMLA. In this instance, the Hospital’s dual call-in requirements did not conflict with any substantive provision of the FMLA.

Employer take-away:

  • Implement and enforce a clear and specific written call-in policy that requires employees to call in to a specific person or line to report their absence and the reason need for leave within a certain time period. You should be able to require two calls – one to report the absence generally to the manager and another to an employer intake line, human resources, or a third-party administrator handling FMLA requests.
  • Evaluate your FMLA policies to ensure that they Include language regarding how you expect your employees to communicate with you regarding the need for leave of any kind. I would suggest that you also specify what type of information the employee must provide when they call in:
    • the specific reason for their absence with sufficient information to allow you to determine if the FMLA applies to the leave; 
    • when the leave will begin and when it is expected to end, and
    • a telephone number and email where the employee may be reached.

It is also a good idea to state that an employee will be required to provide a reasonable excuse if they fail to comply with the call-in procedures.

A Few Things to Consider if You Are Thinking of Requiring Your Employees to Get the COVID-19 Vaccine

Right now, a surprising number of eligible workers are declining to be vaccinated, with a similar percentage indicating that they will refuse once they become eligible. Depending upon whose numbers you believe, approximately one-half of the health care workers and first responders eligible to receive the vaccine have indicated that they will not do so. This is leading many employers to consider whether or not they should require or incentivize their workers to take the vaccine when it becomes widely available. There are a few things to keep in mind if you are considering doing so.

ADA/Title VII Right now, you CAN require your employees to get the vaccine. However, you must accommodate a disabled employee who is unable to take the vaccine (ADA) as well as an employee to objects to being vaccinated due to sincerely held religious beliefs (Title VII). If either the ADA or Title VII applies to your situation, you may not be able to force the employee be accept the vaccine. Rather, you might accommodate the employee by allowing her to work remotely or offer her an alternate schedule that does not require as much co-worker and client interaction.

The EEOC has already stated that getting the COVID-19 vaccine is not a medical examination, but questions asked in the vaccination process may well seek medical information in violation of the ADA. This information should remain with the vaccine administrator and not be provided to the employer.

FLSA You must consider if the time spent by your workers being vaccinated is compensable time under the FLSA. If you require that they be vaccinated, employees may have a legitimate claim to compensation for the time spent doing so. You can count on plaintiff’s lawyers challenging this in the form of FLSA class-actions. (Yet another reason to include an Alternate Dispute Resolution process disavowing any class or collective actions in your Handbook, but that is an issue for another article.) 

Workers Compensation/Civil Liability One of the primary concerns of employers is that they may open themselves to workers compensation and civil liability claims if an employee suffers an adverse reaction due to the vaccine. We obviously do not have sufficient law at this point to say with certainty whether or not these types of claims will succeed, but you can rest assured that employees will attempt to make claims under one or both theories.

“Voluntary wellness program” Many employers are considering offering employees come sort of incentive to encourage them to be vaccinated. Employers should carefully consider the ramifications of each type of incentive. A cash reward could be constitute a non-discretionary bonus that must be included in a non-exempt employee’s regular rate of pay for the period in which it was earned. In addition, employers must consider whether or not offering an incentive would constitute a “voluntary wellness program” that might be prohibited by the EEOC guidelines. (Keep in mind that last month the EEOC withdrew its proposed Rule that would have made it easier and safer to implement such a voluntary wellness program.) 

Bottom line: employers should carefully consider the risks and benefits of requiring or incentivizing employees to take the COVID-19 vaccine before they do so.

A Short Summary of How President Biden’s American Rescue Plan Could Impact Employers

President Biden’s almost $2 trillion “American Rescue Plan” is working its way through Congress. Several provisions of the Plan could significantly impact employers: 

Minimum wage: The Plan would raise the federal minimum wage to $15 an hour over four years and end the tipped minimum wage and the sub-minimum wage for people with disabilities. 

Worker safety: The Plan includes significant provisions designed to improve worker safety, including a COVID-19 Standard to be created by OSHA as well as additional funding for enforcement. 

Expanded FFCRA leave: The Plan would extend the paid sick and family leave benefits of the FFCRA to September 31, 2021 and would require all employers to offer FFCRA leave, including health care providers and those with fewer than 50 employees and those with more than 500 employees. The ARP also would require up to 14 weeks of paid sick and family and medical leave and expand the list of parental caregiving situations that will be covered. The Plan proposes to reimburse employers with fewer than 500 workers the full cost of providing the leave. 

Extended unemployment: The ARP would increase federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that was approved last year, through September of this year, and expand eligibility to independent contractors. 

Miscellaneous: The ARP would also:

  • Grant approximately $440 billion in support to “struggling communities,” including small businesses, Tribal governments, public transit, and essential workers;
  • Provide $130 billion to help schools safely reopen;
  • Expand the Higher Education Emergency Relief Fund;
  • Expand financial assistance to both childcare providers and families, including:
    • providing a fully refundable Child Tax Credit for one year, and
    • expanding the Earned Income Tax Credit for one year;
  • Provide another $1 billion for states for Temporary Assistance to Needy Families (“TANF”) recipients.

Employers need to keep an eye on this Bill as it winds its way through Congress.

Ninth Circuit Issues a Per Diem Ruling That is Worth Noting

On the 8th of this month the Ninth Circuit Court of Appeals issued a ruling that certain per diem payments must be included in an employee’s regular rate of pay. Although the Ninth Circuit covers only Alaska, Arizona, California, Guam and Hawaii, the ruling is nonetheless worth noting to those of us fortunate enough to live and work in the Fifth Circuit.

As you know, under the FLSA a non-exempt employee must be paid overtime at the rate of time and a half times the employee’s regular rate of pay. This fact begs the question: what constitutes the regular rate of pay?

The short answer is: it depends.

In the case before the Ninth Circuit, Clarke v. AMN Services, LLC, AMN, a staffing company sometimes placed its employees at facilities that required them to drive a long distance from their homes. In addition to their hourly rates, AMN paid the employees who traveled more than fifty miles from their homes per diems that were intended to reimburse them for the cost of meals, housing, and other expenses. Being aware of 29 CFR 778.217, AMN Services did not include the per diem payments in the traveling workers’ regular rates of pay when calculating their overtime.

29 CFR 778.217 states in relevant part that:

(a) General rule. Where an employee incurs expenses on his employer’s behalf or where he is required to expend sums by reason of action taken for the convenience of his employer, section 7(e)(2) is applicable to reimbursement for such expenses. Payments made by the employer to cover such expenses are not included in the employee’s regular rate (if the amount of the reimbursement reasonably approximates the expense incurred). Such payment is not compensation for services rendered by the employees during any hours worked in the workweek.

(b) Illustrations. Payment by way of reimbursement for the following types of expenses will not be regarded as part of the employee’s regular rate…

(5) The actual or reasonably approximate amount expended by an employee as temporary excess home-to-work travel expenses incurred (i) because the employer has moved the plant to another town before the employee has had an opportunity to find living quarters at the new location or (ii) because the employee, on a particular occasion, is required to report for work at a place other than his regular workplace.

The Ninth Circuit held that these per diem payments should have been included in the employee’s regular rate of pay because the structure of the payments suggested that they were more akin to wages rather than reimbursements. For example, the amount of the per diem payments depended in part on the number of hours worked by the employee rather than the expenses the worker incurred. In addition, AMN Services made identical per diem payments to its employees who were not required to travel more than 50 miles away from home on assignment. The company included these per diems in the local workers’ regular rates and expressly considered them to be part of their overall compensation package.

The Ninth Circuit’s opinion is not groundbreaking, but it is a good reminder that we should take a hard look at our per diem and reimbursement policies and practices to determine if they should be included in the regular rate of pay or not. Considering that the FLSA provides for 100% liquidated damages and the recovery of attorney’s fees, and that the Louisiana “payday” statute allows for the recovery of ninety day’s penalty wages and attorney’s fees, failing to properly calculate an employee’s regular rate of pay can be a very costly error.

U.S. Wage and Hour Division Issues Two New Opinion Letters

On November 30, the Wage and Hour Division of the U.S. Department of Labor issued two new Opinion Letters dealing with two rather uncommon Fair Labor Standard Act situations.

FLSA2020-17: Calculation of piece-rate regular rate of pay. Addresses the proper method to be used to calculate the regular rate of pay of an employee paid on a piece-rate basis in the absence of a specific agreement with the employee to use such method. (As an aside, always commit the use of this method to writing.)

FLSA2020-18: Does insect farming equal agriculture. Addresses whether insect farming qualifies as “agriculture” under the FLSA and whether certain workers employed by an insect farming operation may be exempt from overtime pay requirements under Section 13(b)(12). 

You can read the full Opinion Letters here https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_11_30_17_FLSA.pdf  and here https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_11_30_18_FLSA.pdf if either situation applies to you.

Flu Season Is Approaching, Should You Require Employees to Get A Flu Shot?

In light of the COVID-19 pandemic, getting a flu shot this year is even more important than it has been in the past. (If you don’t believe me, talk to the CDC.) 

Does this mean that employers should require all their employees to get flu shots? The short answer is NO. 

As of this moment, there is no federal or state law (in Louisiana that is) requiring all employers to compel all their employees be vaccinated for the flu. In fact, both the ADA (for persons with disabilities) and Title VII (for sincerely held religious beliefs) provide exceptions that would allow an employee to refuse to be vaccinated. Rather than require vaccinations, the EEOC has stated that “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” (Guidance) This Guidance was initially issue by the EEOC in 2009 and it was recently re-issued in March of this year. 

This means that although most employers can strongly recommend that employees be vaccinated for the flu, they would also be required to go through the accommodation analysis required by the ADA and Title VII if an employee asked to be excused from the vaccination as an accommodation.  

Healthcare Workers: While the reasonableness of a healthcare worker’s request to not be vaccinated would be held to higher scrutiny, especially in the case of one who provides direct patient care, the general analysis under the ADA and Title VII will be the same. The existence of a state or local law or administrative guidance recommending vaccinations for healthcare workers and the worker’s direct contact with patients will play into the reasonableness, or lack thereof, of the employees request to not be vaccinated. 

Employers should ensure that their requests, or mandates as the case may be, that employees be vaccinated are based upon the best available guidance: refer to the CDC and EEOC publications above, and the worker’s specific job duties. Whatever policy you land on needs to be clearly communicated to your employees and your supervisors must be trained to respond to employee requests to be exempt from vaccinations. (This should generally entail spotting the issue and immediately reporting it to HR for the appropriate analysis.) And, in the context of all of this communication and analysis, the employee’s medical information should be kept confidential.

Does State or Federal Law Require Me to Allow Employees Time Off of Work to Vote?

For most private employers, the answer is NO, there is no state or federal law requiring you to allow employees to miss work in order to vote in state or federal elections. 

vote clipart - Clip Art Library

Louisiana does have a state statute that generally prohibits employers with twenty or more employees from interfering with an employee’s ability to participate in politics. Specifically, LSA-R.S. 23:961 states that: 

Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character. 

Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars. 

One “clever” employer recently asked if it could allow only those employees that it believed to belong to a certain political party off of work in order to vote next Tuesday. We explained that doing so could very possibly constitute a violation of LSA-R.S. 23: 962, in addition to creating an extremely bad optic for the business.

The bottom line: If early voting numbers are any indication, this will probably be one of the largest voter turn outs in modern history. Although employers have no legal obligation to allow employees off of work in order to vote, realistically many employees are going to miss some work to do so. It would be a good idea to decide how you are going to respond to those situations and to inform your managers of the company voting policy. You do not want to find yourself in a situation where workers are allowed time off to vote depending upon their perceived political affiliation.

The CDC Re-Defines “Close Contact”

Under the old Guidance, Close Contact was someone who had been within 6 feet of a COVID-19 positive person for 15 minutes or more.

Under the new Guidance, Close Contact is “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”

On Wednesday, the CDC issued a new Guidance that expands the definition of “close contact” for purposes of exposure to COVID-19.

As you probably recall, the CDC has generally recommended that anyone having Close Contact with a COVID-19 positive individual stay home for fourteen (14) days after their last contact with the COVID-19 positive person.

I do not know what practical impact this new Guidance will have on the average person going about their daily business; I suspect not much. However, this expansion may significantly impact the application of Act 336. You will recall from my prior updates that Act 336 limits liability for civil damages for injury or death resulting from exposure to COVID-19: “…unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct.”

Although we don’t yet have any reported cases interpreting this aspect of the Act, it is almost certain that the new CDC Guidance will constitute a “procedure established by a federal agency” with which we must comply in order to enjoy the protections of Act 336. As you can see, this Guidance will significantly expand the scope of employees that you send home to self-quarantine for 14 days after exposure to COVID-19.

The CDC has not established procedures for tracking an employees’ cumulative exposure to COVID-19 over a 24-hour period. As an HR professional, I would alter both my written policies and my practices to incorporate this new. Showing that you made a good faith effort to comply with the Guidance may be a critical piece of evidence one day.

DOL Announces Revisions to FFCRA That Will Seriously Impact Healthcare Providers

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced revisions to regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). Most significantly, the revised rule will require healthcare providers to provide FFCRA protected/paid leave to a broader range of employees than previously believed. The revisions also clarify other employers’ responsibilities regarding FFCRA paid leave. The revisions were issued in response to the U.S. District Court for the Southern District of New York’s August 3, 2020, decision invalidating portions of the FFCRA regulations and are slated to go into effect on September 16, 2020. You can read the revisions here: https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act In short, the revisions:

  1. Health Care Provider Definition Narrowed:
    • The FFCRA permits employers to exclude “health care providers” from the Act’s leave benefit provisions. The DOL initially defined the term broadly, excluding from FFCRA coverage “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” as well as any individual employed by an entity that contracts with any of these institutions, as well as anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical supplies.
    • The New York Federal Court struck down this definition as too expansive. In response, the DOL has narrowed the exclusion to essentially track the definition provided in 29 CFR 825.102. Generally, this only includes those individuals capable of providing health care services, which include “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” or otherwise meet the definition of the term found in the Family Medical Leave Act (FMLA). The FMLA definition includes “doctors of medicine or osteopathy” authorized to practice in their state or other medical professionals such as podiatrists, dentists, clinical psychologists, optometrists, many chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants, and other similar professionals.
    • Under the new rule, employers may also elect to exempt nurses, nurse assistants, medical technicians, and laboratory technicians who process test results as health care providers.
    • The revision also offers guidance on the type of employee who may not be exempted as a healthcare provider: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. The revised rule states that while the services provided by these employees may be related to patient care – e.g., an IT professional may enable a hospital to maintain accurate patient records – they are too attenuated to be integrated and necessary components of patient care.
  2. Work Availability Reaffirmed. This revision reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work available from which to take leave. In other words, if there is no work available, the employee is not entitled to protected leave. This applies to all qualifying reasons for paid sick leave and expanded family and medical leave.
  3. Employer Permission Still Required for Intermittent Leave. The revision confirms that an employee must obtain employer permission in order to take paid sick leave or expanded family and medical leave intermittently under Section 825.50. If the employer refuses to approve the request, leave may not be taken intermittently.
  4. Documentation Timing Clarified. Initially, the DOL indicated that employees must provide the required documentation prior to taking leave. The revision clarifies this point, and establishes that employees must merely provide required documentation as soon as practicable.

DOL Issues Three New Q&A’s Regarding FFCRA School Leave

Those of you who are keeping up with the pronouncements of our federal government regarding an employer’s obligations under the Families First Coronavirus Response Act are aware that there are still some questions outstanding. Yesterday the DOL answered three of those questions when it issued Q&A’s 98, 99 and 100. (You can find the Q&A’s here https://protect-us.mimecast.com/s/_ACiCERPgZCW49OkTNCJIo?domain=dol.gov).

Specifically, the DOL indicated that:

98. If a child’s school requires the child to alternate between in-person and remote-learning on a day-to-day basis, the parent is entitled to take FFCRA leave on the days that the child is required to remote-learn, assuming that other requirements of the Act are met.

99. If a school gives parents a choice between remote or in-person learning, the parent may not take FFCRA leave if they choose to have their child remote-learn, even if the parent did so out of fear that the child would contract COVID-19.

100. A parent may take FFCRA leave even if a school is utilizing remote-learning on a temporary basis and intends to open to in-person schooling in the near future.

None of these Answers prohibit an employer from allowing an employee to take leave when it is not required by the FFCRA. However, if an employer does so, it should not deduct that leave from the employee’s FFCRA leave “bank” or utilize the tax deduction allowed by the FFCRA for that additional leave.