Federal Court Decision Highlights Challenges of Dealing With Employee Performance Issues While an Employee Is on FMLA Leave

Addressing performance issues of employees who are on leave under the Family and Medical Leave Act (FMLA) can present challenges for employers. An employer may discover, for instance, that prior to going out on FMLA leave, an employee engaged in misconduct or performed his or her job in an unsatisfactory manner. A Texas federal court’s recent decision in Kibbie v. Hays Consolidated Independent School District, No. A-19-CV-(April 7, 2020), highlights the difficulty of confronting performance issues discovered while an employee is out on FMLA leave.

EEOC Updates COVID-19 Disability Accommodation Guidance to Address Higher-Risk Employees Returning to Work

Since the outset of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) has issued instructions, statements, and guidance to help employers navigate COVID-19’s workplace impact. On May 5, 2020, the EEOC issued an update to its Technical Assistance Guidance on Disability Accommodation to address questions regarding employees at higher risk for severe illness from COVID-19.

House Democrats Unveil HEROES Act, $3 Trillion Bill Responding to COVID-19 Crisis

On May 12, 2020, Democrats in the U.S. House of Representatives unveiled the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, the latest effort to respond to the ongoing coronavirus health care crisis. Among other provisions, the $3 trillion relief package would provide $1 trillion in aid to states, $75 billion for coronavirus testing and related healthcare measures, and another round of direct stimulus payments to individuals.

Employers Beware: COVID-19–Related Employment Lawsuits Are Heating Up

For the last several months, employers have been forced to learn how COVID-19 spreads, how to maintain or resume safe work environments, and how to navigate a complex web of new and existing laws and regulations implicated by the pandemic. Employers have also had to contend with a growing wave of COVID-19–related employment litigation.

Texas Workforce Commission Issues Guidance on Unemployment Claims of Individuals Who Refuse to Return to Work

As Texas begins to reopen, some employers are recalling employees placed on temporary leaves of absence or furloughs due to the COVID-19 pandemic. Invariably, a number of employees will ignore recall attempts or refuse offers to return to work. Depending upon the reason for refusal, these employees may remain eligible for the receipt of unemployment benefits, according to guidance issued by the Texas Workforce Commission (TWC) on April 30, 2020.

Los Angeles County Passes Emergency Paid Sick Leave Ordinance

On April 28, 2020, the County of Los Angeles Board of Supervisors unanimously passed an interim urgency ordinance requiring employers with 500 or more employees to provide supplemental paid leave for COVID-19-related reasons. This follows similar measures taken over recent weeks in other local jurisdictions, such as San Francisco.

San Francisco’s COVID-19 Response: FAQs on the New Public Health Emergency Leave Ordinance

On April 17, 2020, Mayor London Breed signed the San Francisco Public Health Emergency Leave Ordinance (PHELO). The San Francisco Board of Supervisors had passed the ordinance earlier in the week. Like similar ordinances adopted in Los Angeles and San José, San Francisco’s ordinance supplements the federal Families First Coronavirus Response Act (FFCRA) and requires employers with 500 or more employees to provide up to 80 hours of paid leave to employees in both the city and county of San Francisco.

How California’s Expansion of Paid Sick Leave Impacts Food Sector Employers

On April 16, 2020, California Governor Gavin Newsom signed Executive Order (EO) N-51-20, which imposes new obligations on employers to provide up to 80 hours of supplemental paid sick leave to certain food sector workers. The following overview provides answers to common questions, including: (1) which food service workers are covered by EO N-51-20; (2) what an employer’s obligations are to those covered workers; and (3) how EO N-51-20 interacts with other laws.

Unemployment at Will: CARES Act Brings Changes for Missouri Employers and New Beginnings

Unemployment insurance laws rarely change. For years, Missouri’s unemployment insurance program has remained steady. So stable, in fact, that it flew under the radar. Most Missouri employers thought about it only when deciding whether to spend the time and money to protest a claim. This was how it was envisioned to work, until the COVID-19 pandemic forced Missouri employers to revisit the unemployment benefits system.

New Jersey Expands State Family Leave Act and Family Leave Insurance Act to Provide Coverage for COVID-19 Leave

In response to the ongoing coronavirus pandemic, on April 14, 2020, New Jersey Governor Phil Murphy signed into law Senate Bill 2374 (S2374), which amends the New Jersey Family Leave Act (NJFLA) and the New Jersey Family Leave Insurance law (NJFLI) to provide job-protected,  paid leave to care for family members quarantined due to COVID-19, and amends the NJFLA to provide for  job-protected  unpaid leave to care for children due to COVID-19 school closures.  The legislation also allows employers to seek certification relating to these expanded categories of leave, allows highly paid employees to take leave if the leave is COVID-19 related, and provides that COVID-19-related leave may be taken on an intermittent basis.

California Court of Appeal Weighs in on Unlimited Vacation Policies

Recently, some employers in California have turned to flexible work arrangements and unlimited paid vacation policies as a tool for recruiting and retaining employees. Before April 2020, however, no California court had addressed whether a nonaccrual, unlimited paid time-off policy was subject to Labor Code Section 227.3, thereby requiring an employer to pay out vested vacation time at the time of an employee’s discharge. Although the California Court of Appeal somewhat sidestepped the issue, its recent decision in McPherson v. EF Intercultural Foundation, Inc., No. B290868 (April 1, 2020), highlighted the potential exposure California employers may face when offering “unlimited” vacation policies that are not clearly communicated to employees. This decision is of particular interest to employers with “unlimited” vacation policies that may be facing substantial vacation payouts in light of terminations, layoffs, and furloughs caused by the COVID-19 pandemic.

Los Angeles Mayor Signs COVID-19 Supplemental Paid Sick Leave Order

The Los Angeles City Council recently passed an ordinance providing supplemental paid sick leave to employees affected by COVID-19 who were employed “with the same Employer from February 3, 2020 through March 4, 2020.” Los Angeles mayor Eric Garcetti had until April 7, 2020, to sign the ordinance adding Article 5-72HH to Chapter XX of the Los Angeles Municipal Code. Instead, on April 7, Mayor Garcetti signed an emergency COVID-19 Supplemental Paid Sick Leave order with significant modifications to the council’s version of the sick leave ordinance in order to balance the potential burdens on businesses.

Weighing the Options: FFCRA and CARES Act Present Alternatives for Small Businesses Facing Hard Choices

Untangling the web of options presented to small employers under the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security (CARES) Act can seem daunting. A small employer (generally one with no more than 500 employees) has a number of options, as well as obligations, to consider when adjusting to challenges presented by the COVID-19 pandemic. In broad terms, the obligations and solutions presented under the FFCRA and the CARES Act can be divided into (1) paid leave obligations; (2) financial assistance; (3) tax incentives; and (4) expanded unemployment insurance benefits for displaced employees. Understanding those programs is critical to successfully navigating the current business climate. So how may a small employer approach these issues?

Leave in the Time of COVID-19

The COVID-19 pandemic is a public health and economic cataclysm, and few employers have been able to escape its impact on their business operations and employees. In their efforts to better manage their workforces during this period of extreme economic instability, many employers are turning to unpaid leaves of absences and furloughs as a way to scale back on costs temporarily while maintaining a connection to employees whose help will be critical to restarting normal business operations (whenever that may be). However, at a time when access to health care and financial support for impacted employees is more important than ever, indefinite unpaid leaves or absence and furloughs can present complex administrative issues for many common employee benefit plans. In the discussion that follows, we highlight some of the more important employee benefits issues to consider when employees are placed on unpaid leaves of absence or furloughs.

CARES Act: Foreign National and Immigrant Eligibility for Paid Leave, Unemployment Benefits, and Stimulus Rebates

On March 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, intended to stimulate the national economy in the wake of the COVID-19 pandemic. The Act provides $2 trillion in direct financial assistance, including paid leave, unemployment insurance (UI) benefits, and rebates to eligible individuals. Immigrants and foreign nationals in the United States may be eligible for some or all of the listed benefits, depending on the circumstances.

No April Fools: FFCRA Went Into Effect and the DOL Issued Regulations

The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020, and, just in time, the Department of Labor (DOL) issued temporary regulations to implement the new provisions of the Expanded Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The regulations largely align with the DOL’s updated “Questions and Answers” (Q&As) that it issued on March 28, 2020. The DOL’s Q&As addressed furloughs, intermittent leave, exceptions for very small businesses,  exemptions for health care providers, telework, among other aspects of the law.

The Families First Coronavirus Response Act: DOL Releases Updated Guidance on Telework and Intermittent Leave

On March 28, 2020, the Department of Labor’s (DOL) Wage and Hour Division released an updated set of questions and answers (Q&As) that provide additional guidance concerning teleworking arrangements (Q&As 17–20) and intermittent leave (Q&As 21 and 22) under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA), both of which are included in the Families First Coronavirus Response Act (FFCRA).

The FFCRA: DOL Releases Additional Guidance Regarding the Small Business Exemption

On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of Questions and Answers (Q&As) that provide additional guidance concerning how employers may take advantage of the small business exemption under the Emergency Family and Medical Leave Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The small business exemption is addressed in questions 4 and 58-59).

The Families First Coronavirus Response Act FAQs: The FMLA Amendments and Paid Sick Leave Requirements of the New Law

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. Among other fiscal packages, the act does three things: (1) expands the Family and Medical Leave Act (FMLA) temporarily (until the end of December 2020) to cover leave needed for the care of children out of school because of COVID-19 and also makes weeks 3 through 12 of its effective period paid leave; (2) creates 2 weeks of paid sick leave for childcare and other leave related to the coronavirus; and (3) provides for tax credits related to the paid leave provisions created by the act.

The CARES Act: What Employers Need to Know About the Historic Stimulus Package

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, intended to stimulate the national economy in the wake of the COVID-19 pandemic. The bill would provide $2 trillion in direct financial assistance to Americans, ease access to loans and other economic assistance to businesses of all sizes, and provide aid and support to healthcare providers.

DOL Releases Field Assistance Guidance for Temporary Nonenforcement Period and FFCRA Notices for Employers

On March 26, 2020, the U.S. Department of Labor’s (DOL) announced the issuance of additional guidance related to the Families First Coronavirus Response Act (FFCRA). The guidance includes “Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act” and model notices “for employers obligated to inform employees about their rights under this new law.”