Kansas Employment Law Blog Photo
DOL Revises Paid Leave Requirements Under FFCRA
By: Boyd Byers

On Sept. 11, 2020, the U.S. Department of Labor issued revisions to its regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revised rule will take effect on Sept. 16, 2020, when it will be published in official form.

Revised Regulations Respond to Court Ruling

These revisions were made to clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions in light of a New York court’s order finding portions of the initial regulations invalid. Specifically, the court set aside four parts of the regulations: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee otherwise has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.
In its revised regulations, DOL does the following:

  • Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirms and provides additional explanation for the requirement that an employee must obtain employer approval to take FFCRA leave intermittently.
  •      Continue Reading...
New York Court Vacates Portions of FFCRA Regulations
By: Tara Eberline

On August 3, 2020, a federal judge in the U.S. District Court for the Southern District of New York invalidated several key portions of the U.S. Department of Labor’s (“DOL”) Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”).

The FFCRA provides emergency paid sick leave and expanded family and medical leave to employees unable to work for certain qualifying reasons related to COVID-19. After Congress passed the Act, the DOL promulgated a Final Rule implementing the FFCRA’s provisions. Almost immediately, the State of New York filed suit against the DOL, claiming that several portions of the Final Rule exceeded the DOL’s authority under the FFCRA. The Court largely agreed with the State of New York, striking down the Final Rule’s (1) “work availability” requirement; (2) definition of “health care provider;” (3) employer consent for intermittent leave requirement; and (4) the requirement that employees provide documentation before taking FFCRA leave.
“Work Availability” Requirement
Under the Final Rule, employees are not entitled to emergency paid sick leave or expanded family and medical leave if their employer has no work available for them. The State challenged this requirement, arguing it was contrary to both the text and purpose of the FFCRA. The Court agreed, describing the DOL’s “barebones explanation” for the requirement as “patently deficient,” especially when considering      Continue Reading...
DOL Releases Updated FMLA Forms
By: Travis Hanson

The U.S. Department of Labor (“DOL”) recently published seven new Family and Medical Leave Act (“FMLA”) forms. These optional-use forms can be used by employers to provide required notices to employees, and by employees to provide appropriate certification of their need for leave. However, employers are still free to use their own forms, so long as they provide the same basic notice information and require only the same basic certification information.

The new forms are:

  1. WH-380-E – Employee’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee.
  2. WH-380-F – Family Member’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee’s family member.
  3. WH-381 – Rights and Responsibilities Notice – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
  4. WH-382 – Designation Notice – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement.
  5. WH-384 – Qualifying Exigency – for use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
  6. WH-385 – Military Caregiver Leave of a Current Servicemember – for use when requesting leave to care for      Continue Reading...
U.S. Department of Labor Issues Regulations Explaining Paid Sick Leave and Expanded FMLA Benefits Under FFCRA
By: Teresa Shulda

Today, the U.S. Department of Labor issued its regulations to implement the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both of which are part of the Families First Coronavirus Response Act (FFCRA or Act). The FFCRA, which became law on March 18, went into effect today, April 1.

The FFCRA requires certain employers with fewer than 500 employees to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19, which are subject to a 100% refundable tax credit.
Generally, employers covered under the Act must provide employees up to two weeks (80 hours or a part-time employee’s two-week equivalent) of paid sick leave, at full pay (up to a $511 per day) if they are subject to a quarantine order related to COVID-19, they have been advised by a healthcare provider to self-quarantine related to COVID-19, or are experiencing symptoms related to COVID-19. The Act also provides for up to two weeks of paid sick leave at two-thirds pay (up to $200 per day) to employees if they are caring for an individual who is subject to a quarantine order or has been advised by a healthcare provider to self-quarantine, and up to 12 weeks of paid sick leave      Continue Reading...
DOL Issues FFCRA Employee Notice Form
By: Boyd Byers

This afternoon the United States Department of Labor (DOL) issued its model notice of employee rights regarding paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The model notice describes information regarding the FFCRA’s paid leave entitlements, eligibility requirements, qualifying reasons for leave related to COVID-19, and the DOL’s enforcement authority. A copy of the notice is available here.

Employers are required to post this notice in conspicuous places on their premises where notices to employees are customarily posted. However, the posting requirement does not become effective until the FFCRA’s effective date, which the DOL says will be April 1. Prior to that date, the DOL will be issuing regulations that should help clarify some ambiguities and further explain employer obligations under the FFCRA. Accordingly, it may make sense for employers to hold off on posting the notice until then, because posting could generate questions about issues on which we are still waiting for DOL guidance. Employers should discuss this with their legal counsel.
You can read Foulston's issue alert about employers’ obligations under the FFCRA here. We’ll provide further information when the DOL issues its regulations. Stay tuned!
Coronavirus: Tax and Employee Benefit Considerations – Part 2
By: Jason Lacey

Employer-sponsored group health plans have drawn attention regarding coverage for certain coronavirus-related costs.

Under the FFCRA, all group health plans are now required to provide coverage for COVID-19 testing without imposing deductibles, copayments, or other cost sharing — and without requiring prior authorization or imposing other medical management standards. This coverage must include both the cost of the test and related services, such as charges for office, telehealth, urgent care, or ER visits and charges for the collection of testing samples. The testing mandate applies to all types of group health plans, including fully insured plans, self-insured plans, high deductible health plans (HDHPs), and plans that are otherwise “grandfathered” from certain ACA requirements. The mandate also applies to fully insured plans sold in the individual insurance market.

This mandate only applies to coverage of COVID-19 testing and related services. Coverage of treatment for COVID-19 remains subject to the terms of each plan, including applicable cost sharing requirements.

IRS Notice 2020-15 clarifies that an HDHP may provide benefits for COVID-19 testing or treatment prior to satisfaction of the minimum deductible without jeopardizing the plan’s status as an HDHP. Individuals covered under an HDHP may receive no-deductible or low-deductible coverage for these costs and remain eligible to contribute to a health savings account (HSA).

A new package of proposed federal legislation, currently called the CARES Act, would provide additional flexibility with respect to HDHPs and HSAs:

  • An HDHP could provide for coverage of telemedicine visits even if the HDHP deductible has not been      Continue Reading...
Coronavirus: Tax and Employee Benefit Considerations – Part 1
By: Jason Lacey

The Families First Coronavirus Response Act (FFCRA), which was enacted on March 18, 2020, established two new categories of paid leave to assist workers needing time off for certain coronavirus-related purposes: (1) up to two weeks of paid sick leave, and (2) up to ten weeks of paid FMLA leave. These paid leave mandates apply to private sector employers with fewer than 500 employees and public sector employers of any size.

Although the FFCRA requires covered employers to provide these new types of paid leave to qualifying employees, it establishes a process for eligible employers to obtain reimbursement from the federal government for the cost of the paid leave through refundable credits against Social Security payroll taxes. The tax credit is available to all private sector employers that are subject to the FFCRA paid leave mandates, regardless of the type of entity (C corporation, S corporation, partnership, LLC, or sole proprietorship). Public sector employers are expressly excluded from eligibility for the tax credit, although they are subject to the paid leave mandates. Private sector employers with 500 or more employees also are not eligible for the credit, even if they voluntarily provide paid leave that mirrors the FFCRA requirements.

An eligible employer’s payroll tax credit for each calendar quarter is an amount equal to 100% of the qualified sick leave wages and 100% of the qualified family leave wages paid by such employer for the quarter. The credit is limited to the maximum amount of the paid leave required to be paid      Continue Reading...

Families First Coronavirus Response Act Becomes Law
By: Sarah Stula

Last week, the U.S. House of Representatives passed the Families First Coronavirus Response Act (H.R. 6201), which, among many other things, provides paid leave for employees who must stay home to care for themselves or their families during the COVID-19 pandemic. Yesterday, the Senate passed the Act, and President Trump signed it into law. The Act makes sweeping changes to the Family and Medical Leave Act (FMLA) and has immediate consequences for employers.

The Act creates two types of paid leave: (1) up to two weeks of sick leave for an employee who is subject to quarantine or experiencing COVID-19 symptoms, is caring for someone who is quarantined or ill, or is caring for a child who cannot go to school; (2) and up to 12 weeks of FMLA leave for an employee to care for a child who cannot go to school or daycare because of COVID-19. Employers will be subsidized for the paid leave through tax credits.
Employers must prepare to implement the Act as soon as possible. Though a deep dive is needed to fully understand your organization’s obligations under the Act and implement a compliance plan, here are some of the important things you should know right now.

1. When is the Act effective?

The new paid leave rules will take effect “not later than” April 2, 2020, and expire on December 31, 2020.
2. Which employers are      Continue Reading...
Is It Time to Update Your Parental Leave Policy?
By: Sarah Otto

According to the United States Department of Labor (DOL), nine out of 10 new fathers in the United States took some time off work for the birth or adoption of a child, but the amount of time that new dads take off work is generally very low. Seven out of 10 fathers took 10 days or less of parental leave. The DOL notes that fewer employers offer paid parental leave for men than for women, and fewer men report receiving paid parental leave than women. While 21% of women take parental leave, only 13% of men do the same.

Updating your parental leave policy to offer leave for new dads could be good for your business. A recent study by Ernst & Young found that 83% of millennials would be more likely to join a company that offered paternity leave. Additionally, the Council of Economic Advisers found that allowing more expansive parental leave improved an employer’s recruitment and retention of employees and also improved employee motivation and productivity. Many companies are taking note: Netflix is offering “unlimited” paternity leave for fathers and mothers during the child’s first year. Microsoft offers 12 weeks of paid leave for mothers and fathers, Ford Motor Company offers eight weeks paid leave, and Amazon gives all parents six weeks of paid leave.
Ensuring your parental leave policy complies with the Equal Pay Act, Title VII, and the Family Medical      Continue Reading...
Leave as an ADA Accommodation: How Much is Enough
By: Donald Berner

Consider this fact pattern:  An employee has a back problem that stretches out over a long period of time.  At some point, the back problem becomes severe enough the employee goes out on FMLA leave.  During the twelve weeks of FMLA leave, the employee ends up scheduling a surgery.  The surgery takes place near the end of the twelve week FMLA period and the employee has a set of lifting restrictions that don't allow the employee to perform the essential functions of the position.  Under those facts, there is no way the employee can return to work at the conclusion of the FMLA leave.  Now what?

Employers face fact patterns like this one on a fairly regular basis.  A reasonable accommodation under the ADA might be to provide the employee with additional leave beyond the protected twelve-week FMLA absence.  These cases are usually fact-specific and can be tricky to resolve.  

A federal court in Wisconsin recently decided a case with this set of basic facts.  In the case, the employee requested another two to three months of additional leave to allow for recovery from the surgery.  The employer denied the request for the additional leave and ended the employment relationship.  As you might expect, the employee brought an ADA claim against the employer.  In what might be a surprise for employers, the court ruled in favor of the employer.  The court focused on the fact the employee had not been able to perform the job duties for the three months during the FMLA leave and that the anticipated two to three additional months was too long for the employee to be away from work.

Keep in      Continue Reading...

DOL "Spouse" Rule on Hold in Four States
By: Donald Berner

The DOL recently issued a final rule modifying the definition of spouse under the FMLA.  The change would recognize a same-sex spouse for purposes of the FMLA based on where the celebration of the marriage occurred as opposed to where the employee lives.  Shortly after the issuance of the rule, the states of Texas, Louisiana, Arkansas, and Nebraska filed for and obtained a temporary injunction blocking the rules application in those states.  The DOL presently intends to enforce the rule as written in the other 46 states not participating in the filing.  Stay tuned for further developments.

FMLA Master Class for Kansas Employers

Spend a day with Foulston Siefkin employment lawyers taking a deep dive into FMLA issues such as curbing abuse and fraud, ensuring that  you are in compliance with tricky notice requirements, and how to issue discipline and terminate employees without running afoul of the FMLA.  This day-long course is offered on June 18, 2014, starting at 8:30 a.m., at the Commerce Bank Center, 1551 N. Waterfront Parkway, Wichita, Kansas.  This course has been approved for up to 6.25 hours of PHR/SPHR credit.  If you’d like to sign up, please visit www.HRHero.com/ks-fmla to register.  If you use the “Friends of Foulston” code S1491, you can receive a 20% discount on the registration fee.

FMLA Changes Proposed in Congress
By: Donald Berner

A bill was introduced last week to amend the FMLA. The proposed changes focus on expanding the family relationships covered under the law. The bill expands coverage to allow leave to care for adult children, siblings, grandchildren, grandparents, parent-in-law, and same-sex spouses or domestic partners. Stay tuned as this proposal begins its journey through Congress.

New FMLA Posters and Forms In Effect
By: Donald Berner

In honor of the 20th anniversary of the FMLA, the DOL issued final rules regarding the amendments to military family leave and airline flight crew FMLA eligibility. As part of the final rules, as of March 8, 2013, employers must use updated FMLA notice and certification forms. 

One significant change included in the final rules is that the DOL model forms will no longer be included in the appendixes to the regulations. This will allow the DOL to make changes without going through the regulatory approval process. Model forms are now available on the DOL website. The new poster is available here https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf and new certification forms regarding military family leave can be found here http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm.
The final rules mirror the proposed changes we previously discussed here http://www.kansasemploymentlawblog.com/index2.cfm?TopicID=14, but more information including a side-by-side comparison chart is available on the DOL’s website.  http://www.dol.gov/whd/fmla/2013rule/comparison.htm
By: Boyd Byers

What day of the year is FMLA leave accessed the most? The day after the Super Bowl. Seriously. 

This fact underscores how the FMLA is subject to employee misuse and creates burdens for employers. “It’s a ripple effect,” says Marc Freedman of the U.S. Chamber of Commerce. “Other people have to cover for them. Customers are left wanting. It can create a lot of problems throughout the workplace.”
Twenty years ago today, President Clinton signed the FMLA into law. Since then, employers have struggled to administer employee leave and comply with the law. FMLA consistently tops the list of HR’s legal questions, according to the Society for Human Resource Management.  
Today the U.S. Department of Labor is holding a party to celebrate the FMLA’s twentieth anniversary. Former President Clinton and other dignitaries will speak. And in honor of the occasion, DOL gave you a present—new regulations!   
The new rules implement and interpret two statutory amendments that expanded FMLA protections. The first expansion provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members, and it also enables more military families to take leave for activities that arise when a service member is deployed.  The second expansion modifies existing rules so that airline personnel and flight crews are better able to make use of the FMLA’s protections.   

For a summary guide to the new regulations in Q & A format, click here. If you have a couple of hours to kill and are a glutton for punishment, you can link to the new rule itself here

     Continue Reading...
Adult Children and the FMLA: New DOL Guidance
By: Donald Berner

The Department of Labor issued a new interpretation letter last week addressing the issue of adult children under the FMLA.

As most of you are aware, employees are not generally able to seek FMLA to care for a child over the age of 18. For an employee to be able to take leave to care for an adult child with a serious health condition, the adult child must be incapable of self-care because of a mental or physical disability. The hard part for employers is deciding whether the adult child actually clears that threshold. 

In its interpretation letter, the DOL notes that an employee is eligible for FMLA leave to care for an adult child if the adult child has a disability as defined by the ADA, is incapable of self-care due to the disability, has a serious health condition, AND is in need of care due to the serious health condition. The important point for employers to take away is the adult child needs to trigger all four of those elements. 

The interpretation letter contains a couple of examples to help employers understand how these adult-child rules will be applied. In one example, an adult child has an auto accident and is likely to clear the threshold and allow a parent to take FMLA leave. In another example, an adult child suffering from diabetes is determined not to clear the threshold for the parent to take FMLA leave.

The interpretation letter can be found here.  If you find yourself dealing with an adult child situation the letter is a good starting point.   

On a side note,      Continue Reading...

DOL Creates 100-Year Anniversary Video
By: Boyd Byers

In honor of America's centennial, France gave us a gift: the Statue of Liberty. In recognition of its own centennial, the United States Department of Labor has given all of you a gift: a YouTube video chronicling its history. The six-minute-long video describes DOL's creation, introduces the labor secretaries, summarizes its legislative history, and promotes the things it does for workers. But be forewarned: the video is a slide slow, not a live-action film, and DOL tells the story to serve its own interests.  Watch the Video

FMLA Master Class to be Held on June 7 in Wichita
By: Boyd Byers

The FMLA has been part of the workplace for nearly 20 years . . . and it hasn't gotten any easier for employers to administer.  For those looking to gain a deeper knowledge of the FMLA, Foulston Siefkin LLP lawyers will be presenting an FMLA Master Class on June 7 in Wichita.  This full-day event will address everything FMLA -- from basic to complex issues.  Sessions will include recent FMLA developments, what constitutes a serious health condition and how to collect appropriate medical information, military family leave, curbing FMLA abuse, and coordinating the FMLA with the ADA and Workers' Compensation laws.  For more information or to sign up, click here.  Be sure to enter the special "Friends of Foulston Siefkin" code to get a 20% discount on your registration (Offer Code: R500).

DOL Proposing Changes to Military Family Leave Provisions under the FMLA
By: Donald Berner

The Department of Labor (DOL) issued an unoffical set of proposed changes to the FMLA regulations earlier this week.  The proposed changes primarily focus on the military family leave provisions.  The proposed changes will eventually be published in the Federal Register and will seek comments from interested parties.  The DOL's stated goal is to add clarity for employers with respect to the military leave provisions of the FMLA.  The DOL describes the highlights of the proposal as follows:

  • Extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty; 
  • Creation of a flexible definition for the serious injury or illness of a veteran;
  • Addition of a provision to cover serious injuries or illnesses that are an aggravation of a pre-existing condition if it occurs during military service;
  • Inclusion of regular armed forces members under the military leave provisions (as compared to National Guard and Reserve);
  • Creation of a foreign deployment requirement for qualifying exigency leave.

Stay tuned as the discussion of these proposed revisions to the regulation will gain steam in the coming months.  Once the DOL finalizes these proposed changes, employers will need to update their FMLA policies.  For access to the DOL page containing links to the information the DOL intends to publish in the federal register click here.

Court Is Now In Session
By: Boyd Byers

October is my favorite month of the year.  Warm, sunny days, followed by cool, crisp nights.  Colorful foliage.  Fall festivals.  College football.  Playoff baseball.  And, of course, the start of another U.S. Supreme Court session.

The Supreme Court reconvened today, the first Monday in October.  There are several employment-law-related cases on the docket.  Perhaps the most-anticipated case before the Justices is the legal challenge to the Affordable Care Act (health care reform law).  Another closely watched case will address whether Arizona’s tough immigration law is preempted by federal law.  The High Court will also decide whether the “ministerial exemption” to the ADA applies to a religious teacher at a church school, and whether states can be sued under the FMLA’s “self-care” provision for failing to provide employees with 12 weeks of unpaid leave for their own serious health condition.  Kansas Employment Law Blog will keep you up to date as these and other cases affecting employers are decided.     
Looking for Work? The DOL is Hiring
By: Donald Berner

The Department of Labor is currently hiring.  While this is good news for recent college graduates looking for work, this may not be such good news for employers.  The DOL is continuing to focus its resources on enforcement of the Fair Labor Standards Act (FLSA).  This focus can mean only one thing for employers -- an increased likelihood of a wage and hour audit.  The local DOL office in Wichita, which covers most of Kansas, has added several new investigators in recent months and is currently hiring yet another.  These recent hires are just now starting to get out of their office and into employers' offices.  These additional investigators likely will result in increased enforcement activity going forward.  In the short-term, employers should consider self-auditing their pay practices, with the guidance of legal counsel under the attorney-client privilege, to ensure compliance with the FLSA prior to getting a visit from the DOL.

In Loco Parentis and the FMLA
By: Donald Berner

What does a crazy parent have to do with the FMLA?  Seems like a fair question to ask.  As a parent, most days I come away feeling a bit crazy. 

Instead of pondering the merits of crazy parents, or parents driven crazy, let's ponder the Department of Labor Wage and Hour Division's (DOL/WHD) recent Interpretation of the in loco parentis language contained within the FMLA regulations.  This recent pronouncement from the DOL/WHD appears to expand the group of employees who are able to claim parent status for purposes of taking FMLA to care for a child.  The regulations explain that individuals "who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child."  The new DOL/WHD interpretation softens this requirement by stating an employee qualifies as a parent by showing either day-to-day care or financial support so long as the employee intends to assume parental responsibility.  The practical implication of this interpretation is to further expand the group of individuals able to assert leave rights as the parent of a child.  Be mindful of this interpretative expansion as you receive FMLA requests related to the care of a child. 

You can find the text of the interpretation at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm

Tips & Tactics -- Government Investigations
By: Donald Berner

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

  • Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
  • Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
  • Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group      Continue Reading...

Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
Subscribe to Kansas Employment Law Letter Image
Subscribe to Kansas Legislative Insights Image