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T H A N K Y O U F O R J O I N I N G U S

www.xperthr.com

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March 16, 2021

Untangling the Web of Leave Laws:

How to Comply and Succeed During COVID and Beyond

Katharine C. Weber

Jackson Lewis P.C. • Cincinnati & Louisville [email protected]

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Katharine C. Weber Principal

513.898.0050

[email protected]

Untangling the Web of Leave Laws: How to Comply and Succeed During COVID and Beyond

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The 2021 Leave Law Challenge

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Overview of the Law: Alphabet Soup

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• FFCRA (Voluntary)

• PSL

• FMLA

• ADA

• FRD

• ADEA

Jackson Lewis P.C. Untangling the Web of Leave Laws: How to Comply

and Succeed During COVID and Beyond

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Voluntary FFCRA Through March 31, 2021

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• FFCRA expired December 31, 2020.

• Employers who were covered by the FFCRA can continue to provide FFCRA through March 31, 2021 and take the tax credit as if the FFCRA had not expired.

• To take the tax credit…

• Employer must have been covered employer under FFCRA

• Employee must have had time still available under FFCRA

• Employer can choose whether to provide, if at all, based on business needs

• Employer must follow all the same rules that applied under FFCRA such as limits on documentation, retaliation etc.

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American Rescue Plan: Voluntary FFCRA Beginning April 1, 2021

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• Extends voluntary FFCRA

• Resets the 10 days of EPSL as of April 1, 2021

• Adds new reasons for which EPSL can be taken

• Employee has been exposed to COVID-19 and is seeking or awaiting results of a diagnostic test or medical diagnosis of COVID-19

• Employer has requested a COVID-19 test or diagnosis

• Employee is obtaining the COVID-19 vaccine

• Employee is recovering from any injury, disability, illness, or condition related to the vaccine

• Expands the tax credits by increasing the annual wages an employer may claim the credit for from $10,000 to

$12,000

• Allows EFML to be used for same reasons as EPSL

• Allows certain state and local governments to take the tax credit

• Allows self-employed individuals to take the tax credit

• Adds non-discrimination provision to prevent employers from treating employees differently based on

• Whether they are highly compensated

• Whether they are full-time

• How long they have been employed

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Overview of the Law: State PSL

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• Many state and local Paid Sick and Safe Leave laws (PSLs) provide time off work to care for a child who is ill or whose school has closed due to public health

emergency.

• Many PSLs provide time off for employee and family members’ illness, which would include time off due to COVID-19.

• Many PSLs provide time off for employee and child preventive care visits. What about time off to obtain a COVID-19 vaccine?

• Many states are considering bills to enact PSL.

• Many states have laws that offer or expand PSLs to cover COVID-19 related absences.

• The state PSLs will likely continue to be passed until Congress passes federal paid family and medical leave.

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Overview of the Law: FMLA

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• Applies to employers with 50+ employees

• Employee must have been employed for 12 months and have worked 1250 hours in last 12 months

• Employee must work at location with 50+

employees in 75-mile radius

• Employee or family member must need time off due to serious health condition

• “Son or daughter”: a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a

person standing in loco parentis who is either under 18 years of age or is 18 or older and

“incapable of self-care because of a mental or physical disability” at the time FML is to

commence

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Overview of the Law: FMLA

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1. Pregnancy and childbirth

2. Conditions requiring inpatient care

3. Conditions that incapacitate you or your

family member (for example, unable to work or attend school) for more than 3

consecutive days and have ongoing medical treatment

4. Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year

5. Permanent or long-term conditions for which treatment may not be effective, but the person is under continuing supervision of a health care provider

6. Conditions requiring multiple treatments that would likely result in a period of incapacity of more than 3 consecutive calendar days in the absence of the treatment

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Overview of the Law: ADA

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• Americans With Disabilities Act

• Cannot discriminate against employee because of disability

• Cannot discriminate against employee associated with disabled individual

• But no obligation to accommodate medical conditions of family members

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Overview of the Law: FRD

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Family Responsibilities Discrimination

• EEOC 2007 Enforcement Guidance:

“Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against

caregivers might constitute unlawful disparate treatment.”

• Supreme Court in 2003:

“the faultline between work and family [is]

precisely where sex-based overgeneralization has been and remains strongest.”

• Title VII does not prohibit discrimination based solely on parental or other caregiver status, so an employer does not generally violate Title VII’s disparate treatment proscription if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.

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Overview of the Law: FRD

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Family Responsibilities Discrimination risk:

• Women with caregiving responsibilities may be perceived as more committed to caregiving than to their jobs and therefore less competent.

• Male caregivers may face the mirror image stereotype: that men are poorly suited to caregiving. As a result, men may be denied parental leave or other benefits

routinely afforded their female counterparts.

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FRD: Risky Business

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• Asking females, but not males, about their childcare and other caregiving responsibilities;

• Stereotypical or derogatory comments about female caregivers;

• Less favorable treatment soon after learning of caregiving responsibilities;

• Female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers;

• Steering or assigning women with caregiving responsibilities to less prestigious or lower- paid positions;

• Males with caregiving responsibilities received more favorable treatment than females;

• Statistical evidence of disparate treatment against female caregivers;

• Deviating from workplace policy.

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Overview of the Law: ADEA

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Age Discrimination in Employment Act

• Cannot discriminate against employees because of their age (over 40)

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The Practical Challenges

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Jackson Lewis P.C. 17

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Do you have to provide more time off once federal, state and local leave entitlements are exhausted?

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But…

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Jackson Lewis P.C. 19

Untangling the Web of Leave Laws: How to

Comply and Succeed During COVID and Beyond

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Practical Challenges

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• Economic issues/ability to pay

• Productivity

• Multiple reasons for leave requests

• Recruitment challenges

• Retention

• Morale

• Female/Family Friendly Reputation

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Creative Solutions

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Untangling the Web of Leave Laws: How to Comply and Succeed During COVID and Beyond

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A year ago, most of you were opposed to allowing employees to work from home…

Untangling the Web of Leave Laws: How to Comply 23

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Possible Solutions

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• Create or expand permanent remote work roles

• Create temporary “transitional” remote work opportunities

• Enhance flexible scheduling

• Expand onsite childcare and tutoring benefits

• Support home childcare and tutoring

• Adjust FSA benefit plans

• Modify FTE status

• Create temporary unpaid leave programs

• Explore temporary or permanent transfers

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Addressing Remote Work Challenges

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Addressing Remote Work Challenges

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• If remote work is going to continue, make sure you have a plan in place that addresses your employee’s unique circumstances and your need to get the job done.

• It may be time for a re-set.

• Set forth the expectations for the job.

• Talk to employees about performance issues that have arisen with any previous flexibility.

• Communicate that while you are willing to work with them during this difficult time, and want them to succeed, ultimately, it will require effort on their part to ensure that the job gets done.

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Final Cheat Sheet

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Final Cheat Sheet

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• Check your ABC’s and legal obligations.

• Consider how to make flexibility work for you.

• Don’t be afraid to try something new.

• Keep in mind that while solutions may be unique to each employee’s situation, you need to be consistent in your position that whatever solution is in place, it must satisfy the Company’s needs.

• Avoid assumptions about who in a family acts as the primary caregiver.

• Communicate temporary or trial basis of any solution.

• Set expectations/guidelines for remote work or other solutions.

• Handle each request in a thoughtful, deliberate manner, even if it cannot be granted.

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Katharine C. Weber Principal

513.898.0050

[email protected]

This webinar will start shortly