Emergency Leave Running Out: What If Employees’ Kids Are Still Not Back To School?

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Emergency Leave Running Out: What If Employees’ Kids Are Still Not Back To School?

By Coby Turner, Josh Seidman and Ryan McCoy - 12/07/2020

In March 2020, Congress expanded the permissible use of leave under the Federal Family and Medical Leave Act (“FMLA”) to allow employees at companies of under 500 people to receive emergency FMLA leave because of a qualifying need related to a public health emergency, where the employee needs to care for a child under age 18 if the child’s school or place of care has closed, or the child’s care provider is unavailable.[1]

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

The Pandemic Continues — And So Does The Need For Leave

Now, some nine months later, employees are either running out of leave time or have already run out. But many children, particularly in parts of the country hardest hit by COVID-19, are not yet allowed to return back to school, or are returning on a hybrid schedule with only part-time in-school instruction.

Parents and caregivers have few options to keep their families safe amid the ongoing public health emergency. What can employers do to address these questions? The answers are not abundantly clear under existing laws. And there are no federal bills in the pipeline that would answer these questions.

Currently, the emergency leave provisions under federal law are treated in the same way as protected leave under the FMLA. And, at the end of either leave, the employee is entitled to return to the same or nearly equivalent job, as the Department of Labor set forth in the FAQs issued in the wake of the FFCRA.

Continued Flexibility Encouraged

But what happens once the employee’s emergency leave has run out, and schools remain closed? There is no definitive guidance on how to respond to this circumstance.

Given the language and intent of both state and federal leave laws, and the lack of existing guidance, a prudent approach for engaging with employees as they respond to continued school closures would be to tap into your existing policies and procedures to permit continued flexibility.

For example, employers should already have a reasonable accommodation procedure under the Americans with Disabilities Act (and its various state law analogs), which could be leaned on to provide structure for responding to parents’ continued needs. This means that, although the employee’s job would not be “protected” under the FMLA after their FFCRA leave expires, the employer may choose to provide some amount of additional unpaid leave as a reasonable accommodation, based on the reality that the employees’ children cannot go back to school.

Likewise, the Department of Labor has encouraged employers to “review their leave policies to consider providing increased flexibility to their employees and their families,” reminding employers that these leave policies must be non-discriminatory.

Similar to addressing expired leave under the FMLA and ADA, the employer should be cautious in simply letting an employee go when leave entitlements expire. Instead, the employer may want to consider going through an interactive process with the employee to determine whether a reasonable adjustment can be made—such as additional time off, a modified schedule, or a work-at-home arrangement— in order to care for someone who is ill, to care for children whose schools have gone remote, or to protect themselves because they may be in a high-risk group and are anxious about returning to the workplace.

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

Preventing Potential Litigation

Given the new ground these issues are breaking, it is unsurprising that COVID-related lawsuits are on the rise, including lawsuits claiming leave discrimination and retaliation. So before an employer takes action with respect to an employee remaining on leave (or recently returning from leave), the employer needs to thoughtfully consider all options, which could include modifying work schedules, extending leave, or bringing employees back to a position other than their former role.

Employers should avoid terminating the employee’s employment at the end of a protected leave without communicating with the employee first, as a failure to do so could prompt a claim of retaliation for taking the leave. As with the FMLA, ADA, and most state discrimination statutes generally, there is no bright-line test for whether to grant any particular accommodation request, and employers should analyze each employee’s circumstances on a case by case basis.

Don’t Forget To Consider State and Local Law Implications

Matters get even more complicated with state and local laws and ordinances that may obligate employers to provide additional leave for similar reasons, including general paid “sick leave” laws that existed pre-COVID-19. For instance, states such as, but not limited to, Arizona, California, Massachusetts, Michigan, and New Jersey have general paid leave laws that cover school closure leaves for employees all the time.

In addition, the list of transitional and COVID-19 paid sick leave laws that cover absences related to school and child care closures is now more than 30. A few notable nonexclusive examples employers should be on the lookout for include:

· Colorado’s Healthy Families and Workplaces Act provides up to 48 hours of general paid sick leave and, depending on certain factors, up to 80 hours of additional public health emergency paid sick leave for issues related to public health emergencies, including the need to care for children if schools or child care providers are closed.

· Nevada’s Paid Leave Law requires covered employers to provide up to 40 hours of paid time off per year for any reason, and now can be used for COVID-19 related leaves as well.

·  Los Angeles’ recent Supplemental Paid Sick Leave law requires paid leave where an employee needs time off to care for a family member whose school or care provider is unavailable due to COVID-19.

·  San Francisco’s Family Friendly Workplace Ordinance requires employers to engage in a formalized process to provide flexible and predictable schedules due to family obligations, including the need to care for children who are not in school.

· Cook County, Illinois’ Earned Sick Leave Ordinance requires covered employers to allow accrual of up to 40 hours of paid sick leave per year for several reasons, including if the employee’s school or place of care is closed by a federal, state or local public official.

Careful employers should check these and other state, city, and county mandates to see if the law extends protected leave beyond that originally provided under federal requirements.

Continuing to wade through various leave laws at the federal, state, and local level, including those pre-dating the COVID-19 pandemic, remain a significant challenge. Seyfarth remains ready to assist businesses complying with these laws and other COVID-19 related issues. If you have any questions, please reach out to one of the authors or any member of our COVID Task Force.

And, to stay up-to-date on Paid Sick Leave developments in COVID-19 and beyond, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to [email protected]

Coby Turner is a partner at Sefarth Shaw LLP, which provides advisory, litigation, and transactional legal services to clients worldwide. Josh Seidman and Ryan McCoy are associates at the firm.

[1] The U.S. Department of Labor FAQs on the Families First Coronavirus Response Act states that “under the FFCRA a ‘son or daughter’ is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.”

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