Health Emergency Leave under the Families First Coronavirus Response Act

President Trump signed The Families First Coronavirus Response Act (FFCRA) last Wednesday, March 18, 2020.  The FFCRA has eight “Divisions,” lettered A to G.  Division C is the “Emergency Family and Medical Leave Expansion Act” (EFMLA). Division E is the “Emergency Paid Sick Leave Act” (EPSLA). The EFMLA, in general, provides paid time off during the current health emergency for an employee to care for a child under 18 years of age. The EPSLA provides paid sick leave for an employee for various reasons related to COVID-19. This blog will discuss the EFMLA; my next blog will discuss the EPSLA. If you are administering leaves under these provisions, please read the law carefully and watch for regulations from the Secretary of Labor. To say this situation is changing rapidly is an understatement.

Health Emergency Leave

The EFMLA adds “Health Emergency Leave” as the seventh general “entitlement to leave” category to the Family and Medical Leave Act and adds an employer pay obligation for that category. This category sunsets on December 31, 2020.

HEL is available due to “a qualifying need related to a public health emergency,” defined as an emergency relating to COVID-19 declared by a federal, state or local authority.  An employee has such a need when “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”  The EFMLA has definitions for “school” and “child care provider” as well.

 “Employee” and “Employer” Definitions Differ From FMLA

Unlike the FMLA which requires an employee to have worked for the employer from whom leave is sought for at least 12 months, the employment period for eligibility under the EFMLA is only 30 calendar days.

Employers with at least 50 employees must provide FMLA leave. The EFMLA does not apply tp large employers. It only applies to employers with fewer than 500 employees. It also gives the Secretary of Labor authority to issue regulations to exempt smaller employers—those with fewer than 50 employees–if fulfilling the obligations under the ERMLA “would jeopardize the viability of the business as a going concern.”

Also, employers of health care providers and emergency responders may elect to exclude such employees from the EFMLA. The Secretary of Labor is authorized to issue regulations concerning this exclusion as well.

Intermittent Leave Limits in FMLA Med Cert Trumps ADA Duty to Accommodate

Managing FMLA intermittent leave continues to vex employers. Terminating an employee with an intermittent leave certification usually carries significant legal risk.  A Minnesota federal court decision two weeks ago upheld an employer’s termination for excessive absenteeism of an employee with an intermittent leave certification.  The court rejected the plaintiff’s numerous FMLA and ADA claims and granted summary judgement to the employer. The decision is a must-read for leave management professionals.  

The plaintiff’s health care provider had certified that the plaintiff would need up to two full days and two half days of intermittent FMLA leave per month for her serious health condition.  In its email approving the requested leave, plaintiff’s employer told her that “[a]ny absences above and beyond the FMLA approved frequency will be considered regular absences and will be eligible for attendance points per policy.”

On six dates, plaintiff sought to use FMLA in excess of her monthly allotment as stated on the med cert form. She received attendance points for these excess absences and for other non-FMLA related absences. Based on her accumulated points, she was terminated for excessive absenteeism under the employer’s policy.

Among her legal claims were claims were that she was discriminated against in violation of the ADA and that that the employer should have granted her more leave without incurring attendance points as a reasonable accommodation. In rejecting the ADA discrimination claim, the court concluded that she could not perform the essential functions of her position and, thus, was  not a qualified individual with a disability because she “could not come to work on a regular and reliable basis.”

In rejecting the failure-to-accommodate claim, the court said that her requested accommodation–“being absent from work more frequently”—was not reasonable because it “does not enable [the plaintiff] to perform the essential functions of her job.”

For those tracking inflexible leave developments, this decision adds to that jurisprudence.

Fishin’ and Boatin’ on FMLA

The termination of a night shift employee who went fishing and boating while on FMLA leave did not violate the FMLA, according to a decision last week by a California federal district court.

The plaintiff had been approved for FMLA intermittent leave. He called out on FMLA for his night shifts on October 19, 20 and 21. The employer had previously denied a request by the plaintiff to take vacation on those three dates.

During the day on October 21, during hours the plaintiff was not scheduled to work, the plaintiff went with co-workers on a pre-planned boating trip.  A co-worker made a video at the outing and posted it on Facebook. In the video, according to the decision, the plaintiff said “I’m not out here.”

When the plaintiff’s employer learned of the video, it investigated and then terminated plaintiff for dishonesty for improper FMLA use. In granting summary judgment to the employer, the court rejected the plaintiff’s arguments that the termination violated the FMLA because fishing and boating activities were not inconsistent with his medical condition and the trip did not conflict with his work shifts. The court concluded that the employee did not produce any evidence to suggest that the employer’s termination decision was based on anything but the employee’s dishonesty.

By the way, this is not my first fish story. See here.

Taking a Cruise While on FMLA

Three Chicago police communication officers (PCOs) used the FMLA as the ticket for time off for a Caribbean cruise together, according to a recent report from the City of Chicago Office of Inspector General (OIG). Two of these PCO’s took a “combined ten cruises using sick leave and/or FMLA leave dating as far back as 2010,” according to the report. A fourth PCO took two FMLA Caribbean cruises. Three of the PCO’s have been discharged, one resigned.

The three who cruised together had booked the cruise almost a year in advance and used intermittent FMLA leave “for at least a portion of the vacation,” according to the OIG report. The doctor of one of the cruisers had recommended the PCO be on bedrest during the time the PCO was on the cruise, according to the report. A second PCO submitted a doctor’s note indicating that he would be having a surgical procedure during the time the PCO went on the cruise, according to the report.  The OIG noted that “[w]hile on the cruise, the three PCOs consumed alcohol, went to numerous restaurants, attended night clubs, toured Caribbean islands, went Horseback riding, rode jet skis and even went on a ‘booze cruise.’”

That the FMLA is abused regularly is no secret. Just ask anyone who administers FMLA leaves. The FMLA does not protect those who abuse it but it facilitates abuse by limiting the information available to an employer concerning an employee’s absence. That is especially so when managing intermittent leave, which is one of the  most vexing leave management challenges.

Supreme Court Asked to Review Decision Rejecting EEOC’s Inflexible Leave Policy

The Supreme Court’s term just got much more interesting for leave management lawyers. A petition for certiorari was filed last week in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit decision rejecting the EEOC’s position that an “inflexible” or “maximum” leave policy violates the ADA because it does not allow for additional leave as a reasonable accommodation.  I had posted that the Supreme Court would eventually need to resolve the “inflexible leave” issue. Perhaps that time will be soon.

Heartland Woodcraft had provided the plaintiff with all of the leave he was entitled to under the FMLA and denied his request for an additional two to three months to recover from back surgery. The plaintiff claimed he was entitled to more leave as a reasonable accommodation under the ADA. The EEOC filed an amicus brief in support of the plaintiff.

The Seventh Circuit held that the ADA does not govern medical leaves. “The ADA is an antidiscrimination statute, not a medical-leave entitlement….. Long-term medical leave is the domain of the FMLA,” the Court said.

Underlying the EEOC’s inflexible leave position is the oxymoronic anomaly that an individual who cannot come to work is nonetheless a qualified individual with a disability, defined as one who can perform the essential functions of the position either with or without an accommodation.

The Seventh Court rejected that argument.  “[A] n employees who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA,” the court said. (italics in original).  “[A] long-term leave of absence cannot be a reasonable accommodation…..'[N}ot working is not a means to perform the job’s essential functions,” the court added.

In a 2014 opinion authored by then-Tenth Circuit Judge, now Associate Justice of the Supreme Court Neil Gorsuch, the Tenth Circuit rejected the argument that the employer’s six-month maximum leave policy violated the ADA. Hwang v. Kansas State University, (10th Cir.  2014).