New Michigan Executive Order Addresses Time Off and Employment Protections

By: Miriam L. Rosen, McDonald Hopkins LLC

In an April 3, 2020 Executive Order, Executive Order 2020-36, Michigan Governor Gretchen Whitmer has refined the requirements of the initial Stay Home, Stay Safe Executive Order issued on March 24. Under the Stay Home, Stay Safe order, critical infrastructure workers for essential businesses along with workers necessary to maintain minimum basic operations for other businesses are permitted to continue to work at the physical location. The new executive order addresses when those employees should remain home due to COVID-10 related circumstances and provides protection for workers who follow those time frames.

Employees with COVID-19 symptoms or positive tests

The executive order indicates that individuals who test positive for or display any of the “primary symptoms” of COVID-19 “should” remain at home or in their place of residence until:

  • Three (3) days have passed since their symptoms have resolved

      And

  • Seven (7) days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.  If the test comes back negative the requirements are dropped.

The principal symptoms are identified as an “atypical cough, fever, and atypical shortness of breath.”

Note the executive order uses the word “should” not “must,” meaning it is advised that an individual follow the directive, but it is not mandatory.

Employees in “close contact” with individuals with symptoms or a positive test

The Executive Order also includes an advisory addressing time off for an employee who has been in “close contact” with another individual who tests positive for or displays the principal symptoms of the COVID-19.   Under those circumstances, the employee should not to report to work until:

  • Either 14 days have passed since the last close contact with the sick or symptomatic person.

      Or

  • The symptomatic individual is tested negative for the COVID-19 virus.

The Executive Order defines “close contact” as “being within approximately six feet of an individual for a prolonged period of time. This would be caring for, living with, visiting, or sharing a health care waiting room with an individual.” Notably, health care professionals, workers at health care facilities, first responders, child protective service employees, workers at child-care institutions, and workers at correctional facilities are not covered by this provision if the employers’ occupational health rules allow them to work.

Protection against discharge, discipline, and retaliation

Moving away from the advisory language, the Executive Order specifically prohibits employers from discharging, disciplining, or retaliating against an employee who is absent during the time periods described in the Executive Order.

Employers are also prohibited from discharging, disciplining, or retaliating against an employee for not complying with an employer requirement to document that the employee or the person with whom the employee had close contact with had symptoms of the disease. This provision is at odds, however, with the requirements of the Families First Coronavirus Response Act, which allows employers to require medical documentation to support use of emergency paid sick leave.

Early return to work

An employee who returns to work before completion of the specified time periods loses the employment protections of the Executive Order.  Further, employers may still discipline or discharge employees who:

  • Decline to return to work after the required time off.
  • Consent to discharge or discipline.
  • Are otherwise discharged or disciplined for a lawful reason.

Time treated as Paid Medical Leave Act

Employers are required to  treat the an employee taking the leave time as if the employee was taking medical leave under Michigan’s Paid Medical Leave Act. The time may be unpaid if no accrued time is available and the provision applies even to employers under 50 employees who are too small to be covered by the Michigan Paid Medical Leave Act.

No right to private action

Given its broad nature and the opportunity for abuse, the Executive Order does offer employers some relief by providing that employees do not have the right to bring a private lawsuit against an employer.  Rather, the Michigan Department of Labor and Economic Opportunity is authorized to enforce the executive order.  Employers should contact their employment law counsel if they have questions regarding the parameters of the Executive Order and how it intersects with the Families First Coronavirus Response Act.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2020.

CARES Act: DOL guidance helps employers understand new unemployment programs

By: Miriam L. Rosen, McDonald Hopkins LLC

Like many things recently, the rules related to unemployment compensation benefits are changing rapidly. Employers are finding themselves trying to navigate the parameters of these new unemployment programs while tackling many other pandemic-related employment issues.

To assist employers, the Department of Labor has issued a Unemployment Insurance Program Letter 14-20 outlining relevant unemployment provisions of the Coronavirus Aid, Relief and Economic Security Act. The Unemployment Insurance Program Letter covers issues related to the administration of and eligibility criteria for state unemployment insurance programs and the enhanced federal provisions. The new Unemployment Insurance Program Letter is the first of several upcoming guidance documents the Department of Labor will issue on the unemployment insurance provisions of the CARES Act.

New Unemployment Programs. The Unemployment Insurance Program Letter outlines the new unemployment programs under the CARES Act.

  • Federal Pandemic Unemployment Compensation
    • Program scope: This program provides an additional $600 per week to individuals who are collecting regular unemployment compensation benefits. Among the requirements of this program is a non-reduction rule, which prohibits states from changing the computation method governing regular unemployment benefits in a way that results in the reduction of average weekly benefit amounts or the number of weeks of benefits payable.
    • Eligibility: Eligible individuals who are collecting certain unemployment insurance benefits, including regular unemployment compensation, will receive an additional $600 per week in federal benefits. This additional payment will be paid by the state along with regular unemployment compensation benefits, although there may be a delay in payment as the program gets set up.
    • Dates:  This benefit is available for weeks of unemployment beginning after the date on which a state enters into an agreement with the Department of Labor and ends with weeks of unemployment ending on or before July 31, 2020.  The maximum period of this benefit is four months.
  • Pandemic Unemployment Assistance
    • Program scope: Pandemic Unemployment Assistance provides benefits for eligible individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for unemployment insurance benefits under state or federal law.
    • Eligibility: To be eligible, among other requirements, individuals must demonstrate that they are otherwise able to work and available for work within the meaning of applicable state law, except that they are unemployed, partially unemployed, or unable or unavailable to work because of COVID-19 related reasons. Coverage also includes individuals who have exhausted all rights to regular unemployment compensation or extended benefits under state or federal law, or the Pandemic Emergency Unemployment Compensation.
    • Dates: Pandemic Unemployment Assistance is available starting with weeks of unemployment beginning on or after Jan. 27, 2020 and ending on or before Dec. 31, 2020.
  • Pandemic Emergency Unemployment Compensation
    • Program scope: The Pandemic Emergency Unemployment Compensation program allows those who have exhausted benefits under regular unemployment compensation or other programs to receive up to 13 weeks of additional benefits. States must offer flexibility in meeting Pandemic Emergency Unemployment Compensation eligibility requirements related to “actively seeking work” if an applicant’s ability to do so is impacted by COVID-19.
    • Eligibility: Eligible individuals who are collecting certain unemployment insurance benefits, including regular unemployment compensation, will also receive an additional $600 in federal benefits per week.
    • Dates:  Weeks of unemployment beginning after the date of signed agreement between the Department of Labor and state through Dec. 31, 2020.
  • Short-Time Compensation/Work Share Programs
    • Program Scope: Short-Time Compensation, also known as Shared Work or Work Share, is a state program intended to avoid lay-offs by reducing the hours for a group of workers and allowing those workers to receive a partial unemployment benefit payment while still working. States with an existing program may be reimbursed for 100% of Short-Time Compensation benefit costs, up to a maximum of 26 weeks of Short-Time Compensation per individual.
    • Eligibility: Employers who choose to participate in existing or newly created state programs.
    • Dates: Reimbursements are available starting with weeks of unemployment beginning on or after March 27, 2020 and ending with weeks of unemployment ending on or before Dec. 31, 2020.

Coordination of unemployment compensation benefits programs.

The Unemployment Insurance Program Letter also addresses a frequent question posed by employers: Can an employee establish eligibility for multiple benefit programs, including multiple programs authorized in the CARES Act?   The answer is yes.

The Unemployment Insurance Program Letter outlines the order of unemployment compensation payments, which is contingent upon an individual meeting all eligibility criteria for the respective program or programs. It is also contingent on the state having entered into applicable agreements with the Department of Labor related to such programs.

Answering another frequent question, the Department of Labor also notes: The Federal Pandemic Unemployment Compensation, which provides for the additional $600 per week, is available for individuals collecting regular unemployment compensation, benefits as self-employed (and other Pandemic Emergency Unemployment Compensation reasons) and benefits under a Work Share program – among other reasons (see the Unemployment Insurance Program Letter for the full list).  Individuals will receive FPUC payments concurrently with payments under these programs. Upon execution of an agreement between the state and Department, this applies to all weeks of unemployment ending on or before July 31, 2020.

Finally, the Unemployment Insurance Program Letter includes a chart summarizing the new unemployment programs for employers.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2020.

DOL issues 4th Q & A guidance on Families First Coronvirus Response Act

By: Miriam L. Rosen, McDonald Hopkins LLC

To assist employers in implementing the Families First Coronvirus Response Act (FFCRA), the Department of Labor (DOL) has issued a series of Q & A styled guidance.  On April 3, 2020, the DOL issued a 4th set of questions and answers (Q. 60 – Q. 79) that dig into some of the specifics regarding when emergency paid sick leave (EPSL) and emergency FMLA (EFMLA) leave are available for use.

UNDERSTANDING  THE REASONS FOR EMERGENCY PAID SICK LEAVE 

Emergency paid sick leave is available for six specific reasons.  The DOL delved into those reasons in its most recent guidance.

Paid sick leave for Federal, State, or local quarantine or isolation order related to COVID-19.

First, the DOL guidance (and the new FFCRA regulations) confirm that for purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders issued by any Federal, State, or local government authority that causes an employee to be unable to work (or to telework) even though the employer has work that the employee could perform but for the order.

Note, however, an employee may not take EPSL for this qualifying reason if the employer does not have work for the employee to perform as a result of a shelter-in-place or a stay-at-home order.  In the instance where the employer does not have work for an employee as a result of a shelter-in-place or a stay-at-home order, the alternative is to seek unemployment compensation benefits. (Q. 60).

Paid sick leave to self-quarantine.

An employee is eligible for EPSL if a health care provider directs or advises the employee to stay home or otherwise quarantine because the health care provider believes that the employee may have COVID-19 or is particularly vulnerable to COVID-19, and quarantining based upon that advice prevents  the employee from working (or teleworking). (Q. 61).

  • What if an employee decides to quarantine herself for two weeks, and then return to work, but has not sought a medical diagnosis or the advice of a health care provider.  

Generally, the employee is not eligible for EPSL in that circumstance.   An employee may not take EPSL under the FFCRA if the employee unilaterally decides to self-quarantine for an illness without medical advice, even if the employee has COVID-19 symptoms. An employee may only take EPSL to seek a medical diagnosis or if a health care provider otherwise advises the employee to self-quarantine. (Q. 62).

In addition, an employee who tests positive for the coronavirus or is advised by a health care provider to self-quarantine may continue to take EPSL.

Paid sick leave to care for someone who is subject to a quarantine or isolation order.

An employee may take EPSL to care for an individual who, as a result of being subject to a quarantine or isolation order, is unable to care for him or herself and depends on the employee for care and if providing care prevents the employee from working and from teleworking.

Furthermore, an employee may only take EPSL to care for an individual who genuinely needs the care. Such an individual includes an immediate family member or someone who regularly resides in the employee’s home.  An employee may also take EPSL to care for someone if the relationship creates an expectation that the employee would care for the person in a quarantine or self-quarantine situation, and that individual depends on the employee for care during the quarantine or self-quarantine.

An employee may not take EPSL to care for someone with whom the employee has no relationship. (Q. 63).

  • When is an employee eligible for paid sick leave to care for someone who is self-quarantining?

An employee may take EPSL to care for a self-quarantining individual if a health care provider has advised that individual to stay home or otherwise quarantine him or herself because the individual may have COVID-19 or is particularly vulnerable to COVID-19 and provision of care to that individual prevents the employee from working (or teleworking). (Q. 64).

Paid sick leave based on a “substantially similar condition” specified by the U.S. Department of Health and Human Services.

The U.S. Department of Health and Human Services has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. If HHS does identify any such condition, the DOL will issue guidance explaining when an employee may take paid sick leave on the basis of a “substantially similar condition.” (Q. 73).

UNDERSTANDING THE CHILD CARE REASONS FOR EPSL AND EFMLA

Both EPSL and EFMLA leave are available for an employee to care for his or her child under 18 whose school or place of care is closed or whose child care provider is unavailable, due to COVID-19 related reasons. The new guidance explores the parameters of the child care provisions of the FFCRA.

Paid sick leave or expanded family and medical leave to care for a child who is 18 years old or older.

EPSL and EFMLA include leave to care for one (or more) children when the child’s school or place of care is closed or child care provider is unavailable, due to COVID-19 related reasons. This leave may only be taken to care for a non-disabled child if he or she is under the age of 18. If the child is 18 years of age or older with a disability and is not able to provide self-care due to that disability, the employee may take EPSL and EFMLA to care for the child if his or her school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 related reasons, and the employee is unable to work or telework as a result. (Q. 66).

What is a “place of care”?

A “place of care” is a physical location in which care is provided for an employee’s child. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. (Q. 67).

Who is a “child care provider”?

According to the DOL’s guidance, a “child care provider” is someone who cares for the employee’s child. This includes individuals paid to provide child care, like nannies, au pairs, and babysitters. It also includes individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors. (Q. 68).

  • Is EPSL or EFMLA available for more than one guardian simultaneously to care for the child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?

According to the DOL, an employee may take EPSL or EFMLA to care for their child only when the employee needs to, and actually is, caring for their child if the employee is unable to work or telework as a result of providing care. Generally, an employee does not need to take such leave if a co-parent, co-guardian, or the usual child care provider is available to provide child care. (Q. 69).

  • If the school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?

Yes. If the physical location where the employee’s child received instruction or care is now closed, the school or place of care is “closed” for purposes of EPSL and EFMLA. This is true even if some or all instruction is provided online or through another format, such as “distance learning,” where the employee’s child is still expected or required to complete assignments. (Q. 70).

GUIDANCE REGARDING USE OF EPSL AND EFMLA WITH OTHER TYPES OF LEAVES

May an employee use EPSL or EFMLA if the employee is receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan?

In general, no, unless the employee returned to work before taking use of the new FFCRA leaves. If an employee is receiving workers’ compensation or temporary disability benefits because the employee is unable to work, the employee may not take EPSL or EFMLA. However, if a qualifying COVID-19 related reason prevents the employees from working, the employee may take EPSL or EFMLA, as the situation warrants. (Q. 76).

May an employee use EPSL or EFMLA if the employee is on an employer-approved leave of absence?

It depends on the nature of the leave.   If the leave of absence is voluntary, the employee may end the leave and begin taking EPSL or EFMLA under the FFCRA if a qualifying reason prevents the employee from being able to work (or telework). However, the employee may not take EPSL or EFMLA if the leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents the employee from working (or telework). (Q. 77).

The DOL’s full FFCRA guidance – now up to 79 questions- can found here: Families First Coronavirus Response Act: Questions and Answers at on the DOL website.

In addition to the new guidance, the DOL has posted a recorded webinar on the FFCRA, which can be found here: https://dolwhd.cosocloud.com/pawkgwfawza0/?launcher=false&fcsContent=true&pbMode=normal

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2020.

Additional DOL Guidance on Paid Sick and Paid FMLA Provides Practical Advice

By: Miriam L. Rosen, McDonald Hopkins LLC

The Department of Labor has issued additional guidance (Guidance) on the Emergency Paid Sick Leave (EPSL) provisions and the Emergency FMLA (EFMLA) requirements of the Families First Coronavirus Response Act (FFCRA).

The new Guidance includes questions and answers that address many of the practical issues and concerns that employers have raised related to implementing the FFCRA on April 1, 2020. With over 40 additional questions, the Guidance covers critical topics such as layoffs/furloughs and use of paid leave, documentation that employers may require for use of paid leave time, whether workers can take paid sick leave intermittently, and whether employers that closed before the effective date of the FFCRA must pay paid sick leave.    A number of the key issues covered in the Guidance are highlighted below:

Layoffs /Furloughs and Availability of EPSL and EFMLA Paid Benefits.  The Guidance answers specific questions about the interplay between various layoff/furlough situations and possible receipt of EPSL and EFMLA paid time. 

Layoff/furlough before April 1st.

If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

Layoff Furlough after April 1st.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

Layoff/Furlough While Using EPSL and EFMLA

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

Availability of FFCRA Benefits to Furloughed Employee

If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

EPSL/EFMLA and Unemployment. The DOL’s Guidance makes clear that employee’s may not receive the FFCRA benefits while also receiving unemployment.

The guidance notes, however, that states may have their own set of rules regarding extending partial unemployment benefits to workers whose hours or pay have been reduced.   So, employees should contact their State workforce agency or State unemployment insurance office for specific questions about eligibility.

Requesting and Documenting Leave.   A frequent question raised by employees is what documentation can be required to support EPSL and EFMLA leave requests.

The DOL’s Guidance explains that employees must support leave requests with appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s).

Employees must provide documentation supporting the absence, e.g., a copy of the quarantine or isolation order, or written documentation from a health care provider advising self-quarantine. For employees using leave to care for a child, examples of supporting documentation include a notice posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.

Use of EPSL.   The Guidance indicates that the total number of hours for which an employee can receive EPSL is capped at 80 hours (or for a part-time employee, the number of hours equal to the average hours that the employee works over a typical two-week period).

For an employer that provided paid time off prior to April 1st, the Guidance also notes that an employer cannot deny an employee the EPSL just because the employer paid that time for a reason identified in the EPSL Act prior to the April 1, 2020 effective date.

Use of EFMLA.   The Guidance clarifies that the only type of family and medical leave that is paid leave is expanded family and medical leave under the EFMLA when such leave exceeds 10 days.

Further, the Guidance notes that the total amount of FMLA leave available in a 12 month period is 12 weeks. So, if an employee has previously used FMLA for another reason, the amount of expanded EFMLA is what remains of the employee’s 12 week allotment.  The Guidance includes this specific example:

For example, assume you are eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. You therefore have 10 weeks of FMLA leave remaining. Because expanded family and medical leave is a type of FMLA leave, you would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave you take would count against your entitlement to preexisting FMLA leave.

Documentation and Recordkeeping.  The Guidance provides that employers can require documentation to support the need for both EPSL and EFMLA.

  • Documenting for tax credit. The DOL notes that private sector employers that provide the expanded FFCRA benefits are eligible for reimbursement of the costs of that leave through refundable tax credits.  If an employer intends to claim a tax credit under the FFCRA for payment of expanded benefits, the employer should retain appropriate documentation.  Further, the employer should consult the IRS’s applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. Notably, an employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

  • Documents that employees must provide to support EPSL and EFMLA benefits leave.  To support the need for EPSL, employees must provide the documents specified in applicable IRS forms, instructions, and information.

    Employers may also require employees to provide additional documents to support closing of schools and that childcare is unavailable, due to COVID-19-related reasons. The DOL notes for example, this may include a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed from an employee or official of the school, place of care, or child care provider.  Employers must retain this documentation in support of the FFCRA benefits.

Ability to work or telework.  The EPSL and EFMLA benefits are available when an employee is unable to work or telework.  The Guidance addresses those circumstances:

  • When am I able to telework under the FFCRA?

You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

  • What does it mean to be unable to work, including telework for COVID-19 related reasons?

An employee is unable to work if the employer has work for the employee and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or by means of telework.

If the employee and employer agree that the employee will work the normal number of hours, but outside of the normally scheduled hours (for instance early in the morning or late at night), then the employee is able to work and leave is not necessary unless a COVID-19 qualifying reason prevents the employee from working that schedule.

  • If employee is unable to telework, is the employee entitled to EPSL or EFMLA?

If the employer permits teleworking and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then the employee is entitled to take EPSL.

Similarly, if the employee is unable to perform those teleworking tasks or work the required teleworking hours because a childcare need is unavailable, because of COVID-19 related reasons, then the employee is entitled to take expanded family and medical leave.  If the employee is able to telework while caring for their child, EPSL and EFMLA are not available.

Intermittent Use of EPSL and EFMLA.  Under the standard FMLA, leave time can be taken intermittently.  Employers have questioned whether intermittent use is available for the FFCRA benefits. The Guidance addresses this series of questions:

 Can employees take EPSL or EFMLA intermittently while teleworking?

Yes, if the employer allows it and if the employee is unable to telework their normal schedule of hours due to one of the qualifying reasons in the EPSL. In that situation, the employer and employee may agree that EPSL can be used while teleworking. The same applies to intermittent use of EFMLA.

The DOL notes that employees may take intermittent leave in any increment, provided that the employee and employer agree.  The DOL also notes that is supportive of voluntary arrangements and encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.

  • Can employees take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?

It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:

  1. You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  5. You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

  • May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?

Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.

This post has covered a number of the key issues that employers are now facing as  the law is effective on April 1, 2020.  The link to the DOL Guidance is:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.    Consult employment counsel for assistance with implementation and compliance issues.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2020.

Not the Employer, But May Still be Liable

By: Claudia D. Orr, Plunkett Cooney

I don’t know about you, but I am on Coronavirus overload. I know we all need to keep up with the ever changing executive orders, newest federal laws, updated guidance, etc., but I need a break. So, I thought I would share with you a story that is not often told – how a company can get sued when another company fires its employee.

Today’s case is Haywood v General Motors LLC. It involves Plaintiff Michael Haygood a 40- year skill trades’ helper who retired in 2009. Apparently missing GM, he began working for Aramark as a custodian assigned to GM’s Technical Center in Warren.

Unfortunately, he leased a vehicle from GM in 2015 that had ongoing extensive problems. This “lemon”, which is at the heart of our story, may turn into lemonade before this story ends.

Haywood began to complain to GM employees about his vehicle, including to a vice-president who suggested that Haywood send an email explaining the problem. During a phone conference that Haywood and his wife had with GM’s customer service department on October 11, 2016, Ms. Haywood stated that if the problems weren’t addressed, “she would raise the problems with GM’s chief executive officer in a public forum scheduled for that week” and she would hire a lawyer.

One thing I have learned is that you should always try honey before you get nasty, because there is no return and, threatening to hire a lawyer, well, that pretty much kills any cooperative, warm fuzzy feelings the opponent may have had.

Three days later, Haywood was told to gather up his belongings, turn in his badge and gate pass and was escorted from GM’s property. Haywood was banned from all GM facilities. By the 18th, Haywood was interviewed by Aramark’s human resources manager and, two days later, he was fired. Now Haywood was out of a job and still apparently driving a lemon.

Haywood filed a union grievance, contesting his discharge from Aramark. GM refused to cooperate or provide any of the information requested by the union. However, it did learn on February 1, 2017 that the reason Haywood was fired was because GM employees told a GM security investigator that Haywood had threatened a team lead in the Executive Care Center and an administrative assistant and he had refused to leave the area when asked to do so. It had also been reported that Haywood told GM’s customer care center that he would continue to harass leadership until his vehicle problems were fixed.

Haywood’s grievance was settled, in part, by Aramark admitting that it terminated him solely because of GM’s decision to ban him from all of its facilities and its agreement to reinstate Haywood if, within 18 months, GM rescinded its decision.

Clearly, GM had a target on its back. What’s that saying? “Hell knoweth no fury” like the scorned owner of a lemon – or something like that.

Haywood sued GM in federal court, claiming race discrimination, defamation and tortious interference. The federal court dismissed the discrimination claims and then declined to exercise jurisdiction over the state law tort claims. Incidentally, that is becoming more common.

So, Haywood brought the state law claims in the Macomb County Circuit Court. Rather than answering the complaint, GM immediately moved for dismissal, arguing the statute of limitations defeated the defamation claim (which is one year for anyone who is curious) and that the claim had not been pleaded with sufficient specificity.

As to the tortious interference claim, GM argued that it was preempted by Section 301 of the Labor Management Relations Act and, therefore, it was also time barred by that law’s six-month limitations period. The circuit court granted GM’s motion. Haywood appealed.

The Michigan Court of Appeals reversed the circuit court’s dismissal. While the analysis concerning the defamation claim is just riveting for a legal geek like me, I won’t bore you with the details of the fraudulent-concealment discussion. I want to focus on the court’s ruling as to the intentional interference claim because this is a more interesting possibility for your company.

A tortious interference with a business relationship requires proof of (1) a valid business relationship or expectancy, (2) knowledge of the relationship or expectancy on the part of the defendant, (3) an intentional interference by the defendant inducing or causing a breach or termination of the relationship or expectancy, and (4) damages.

I have threatened to bring these claims on behalf of clients who have a non-competition agreement when a former employee begins working for a competitor. In such cases, I write the former employee and the new employer, include a copy of the non-competition agreement and demand that the relationship end. This provides the new employer with knowledge of my client’s contractual right with its former employee and a warning that, by employing that individual, the competitor is interfering with that contract.

But in this case, the claim arose in a different context.  Here, Aramark provided custodian services to GM. When GM banned Haywood from all of its facilities, the circuit court reasoned that Aramark could have transferred Haywood to a different client.

But the appellate court found fault in this analysis stating it is irrelevant whether GM’s ban required Aramark to fire Haywood. The settlement agreement with the union acknowledged that this was the reason for his discharge and that Haywood would be reinstated if GM lifted the ban. The circuit court’s decision erred by focusing on causation.

GM argued that it had the right to ban anyone it wanted from its property. But this wasn’t the point either. To succeed on this claim, Haywood had to allege that GM did something that was illegal, unethical or fraudulent. Haywood could either show that (1) GM intentionally did something that was per se wrongful, or (2) (and this is the key here) GM did something that was lawful but did so with malice that was “unjustified in law for the purpose of invading the contractual rights or business relationship of another.”

So, yes, GM can ban anyone it wants from its facilities. That is lawful. But Haywood was alleging that the ban resulted from false statements made about him by GM employees. If he can prove those statements were defamatory, he will have demonstrated the wrongful act. Ok, so I circled back to the defamation claim.

I won’t bore you with the preemption argument that applied to the tortious interference claim, but will just say that the appellate court did not find that the tortious interference claim against GM required an analysis of the collective bargaining agreement between the union and Aramark. Thus, GM’s preemption argument (that would have found the claim time barred), failed.

But isn’t this case interesting. In your workplace, you may use temporary workers from a temporary staffing company such as Kelly Services for example. If one of your employees lies about the temporary worker in order to get the worker banned and as a result the temporary agency terminates its relationship with the worker, your company may be held liable. So, just because it’s a temp employee that is being accused of wrong doing does not mean you shouldn’t conduct an investigation to determine whether there is any truth to the accusations of wrongdoing. Failure to do so may land your company in the same place as GM.

The use of third party employees at your workplace creates significant risks and potential liabilities that you may not have considered in addition to the creation of a joint employer relationship. Before you act, it may be best to consult with an employment attorney.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.  

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2020.  

EFFECTIVE TODAY – – Oakland County Emergency Order Requires Health Screening of Employees and Social Distancing Policy

By: Claudia D. Orr, Plunkett Cooney

Yesterday, Oakland County Executive David Coulter announced that the Oakland County Health Division had issued an emergency order that requires the essential businesses in Oakland County to screen all employees for illness and risks related to exposure to the Coronavirus. In addition to screening questions, employers are asked to take each employee’s temperature if a touchless thermometer is available.

Employees who disclose that they have had any of the COVID-19 symptoms (fever, cough, shortness of breath, sore throat, diarrhea) or, within the last 14 days, have either had close contact with someone who has been diagnosed with the Coronavirus or traveled (internationally or domestically) must be excluded from the workplace for:

            (a) 3 days with no fever and 7 days since the first symptom,

            (b) 14 days if they had close contact with someone diagnosed with the virus, and

            (c) 14 days following their travel.

All employers in Oakland County who still have employees coming to the workplace must also develop a plan that manages physical distancing of at least 6 feet with coworkers and for customers who are waiting in lines for service. These plans must limit capacity in facilities that will provide for this social distancing which will include such things as signage, limits on entrance to facility and any specialized hours.

The order must be posted at the entrance to the facility and published to the public. The order takes effect at noon March 25, 2020 and runs through April 13, 2020.

Employers in other counties should expect that similar orders will be issued by their county health departments in the near future.

Oakland County employers need to develop a questionnaire documenting their screening efforts and a policy that complies with the above directive. If you need assistance, contact an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.  

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2020. 

DOL Provides Q & A Style Guidance on Families First Coronavirus Response Act / FFCRA is effective April 1, 2020

By:  Miriam L. Rosen, McDonald Hopkins

Signed on March 18, 2020, the Families First Coronavirus Response Act (FFCRA) generally requires that employers with fewer than 500 employees provide eligible employees with up to 80 hours of emergency paid sick leave (EPSL) for specified COVID-19 related reasons.  The law also requires these employers to provide up to 12 weeks of FMLA leave for childcare reasons related to COVID-19 school closings.

For many employers, what has followed since March 18th are questions and more questions about coverage, notice, use, and other basic compliance requirements of the FFCRA.  On March 24th, the DOL issued a Q & A-style Guidance that answers some question, but leaves many more unanswered just a week before the FFCRA is to be effective.

The DOLs Questions & Answers

FFCRA Effective Date.   Significantly, the DOL has stated that the FFRCA is effective on April 1, 2020 and applies to leaves beginning on that date.  This differs from the expected effective date of April 2nd

  1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?

The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

Determining Employer Coverage. Employers have also had questions about how to determine if they are an employer with 500 or fewer employees – especially if the company is a subsidiary of a larger parent. In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA.  The factors for that test include: (i) Common management; (ii) Interrelation between operations; (iii) Centralized control of labor relations; and (iv) Degree of common ownership/financial control.

  1. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?

You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

  1. If I am a private sector employer and have 500 or more employees, do the Acts apply to me?

No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.

Small Employer Exemption.      Employers with fewer than 50 employers have asked what they will need to show to establish that complying with the FFCRA will jeopardize their business. The DOL responded as follows to that question:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

Counting hours worked and calculating pay:  The DOL’s guidance answers various questions related to hours worked and pay issues related to the emergency paid sick time benefit and the paid FMLA:

  1. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave? A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

  1. When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

However, the EPSL Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

  1. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?

It depends on your normal schedule as well as why you are taking leave.

If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:

  • your regular rate of pay,
  • the federal minimum wage in effect under the FLSA, or
  • the applicable State or local minimum wage.

In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above.

Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.

If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.

  1. What is my regular rate of pay for purposes of the FFCRA?

For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.

If you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation.

You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

Eligibility and Use of Emergency Paid Sick Leave Act.  A number of questions addressed how employees can use the new paid leave requirements and how the two benefits interrelate.  For some employers that would like to take a tax credit for paid time off provided prior to April 1st, the Guidance indicates that the benefits are not retroactive and prior benefits do not count towards time owed as of April 1st. The eligibility and use questions and answers follow below:

  1. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

  1. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?

You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.

Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

  1. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?

No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

  1. Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

  1. Are the paid sick leave and expanded family and medical leave requirements retroactive?

No.

  1. How do I know whether I have “been employed for at least 30 calendar days by the employer” for purposes of expanded family and medical leave?

You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.

If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.

While the DOL’s questions are a helpful start, employers continue to have questions about basic compliance issues that are not yet addressed.  The link to the Guidance is:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. The DOL has indicated that regulations are coming.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2020.

 

COVID-19 Bill with FMLA leave and sick pay provisions passed by House and moves to Senate

By: Miriam L. Rosen, McDonald Hopkins

In response to the unprecedented impact of the Coronavirus (COVID-19), on March 14, 2020 the  U.S. House of Representatives passed the Families First Coronavirus Response Act, which is intended to provide a broad range of assistance to businesses and individuals.  Specifically, for employers and employees, the bill includes measures that will expand the FMLA and provides for emergency paid leave for employers of 500 or fewer employees. The bill would extend these protections through the end of 2020.

Before the bill even made it to the Senate, the House amended it to make “technical corrections” on March 16th scaling back on some of the benefits in the initial bill.    President Trump has already indicated his support.  While some changes in the Senate are likely, once the legislation is passed employers will need to ramp up quickly.  Employers should take time now to become familiar with the parameters of this legislation.

 Expansion of FMLA to COVID-19 Leaves.

Notably, the bill expands the FMLA’s time off rights of up to 12 weeks of leave to encompass a “Public Health Emergency Leave” (referred to here as “FMLA-C19” leave).   The FMLA-C19 leave is available for a broader group of employees and for specific COVID-19 related reasons.

The summary below covers the bill as amended on March 16th and includes the following changes to the scope of the FMLA:

    1. Covered employers. Significantly, an employer that employs “fewer than 500 employees” is a “covered employer” for purposes of FMLA-C19 leave.  In contrast, the FMLA applies to employers with 50 or more employees.
    1. Eligible employees. An employee employed for a least 30 day is eligible for the FMLA-C19 leave rights. This is in contrast to the FMLA which requires 12 months of employment for FMLA coverage.
    1. Expanded family member definition. The original bill included an expanded definition of parent  as well as coverage for next of kin and grandparents in the definition of family member.  Those provisions were eliminated in the amendment.
    1. Reasons for FMLA-C19 Leave.  FMLA-C19 leave is available for the following reasons:
      • To follow a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus;
      • Leave to care for a family member who is under a coronavirus-related quarantine;
      • Leave to care for an employee’s minor son or daughter if the school or childcare is closed, or the childcare provider is unavailable related to coronavirus;
    1. Pay for FMLA-C19.

            Under the amended bill, the first 10 days of any FMLA-C19 leave may be unpaid, but available     employer provided paid leave may be used.   

            Significantly, after the first 10 days of FMLA-C19 leave, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay for childcare reasons only. Paid FMLA leave is capped at $200 per day or $10,000 in the aggregate.

    1. Notice Requirement. The bill provides that an employee will provide the employer with as much “notice of leave as is practicable.”
    1. Job Restoration. Employers with 25 or more employees must restore an employee to the same or similar job following any FMLA-C19 leave.
    1. Tax Credit for Wages. A refundable tax credit will be available for employers equal to 100% of qualified wages required to be paid for the Emergency FMLA-C19 leave for each calendar quarter.

Remember, as of this posting, this legislation is still pending.  If passed and signed by the President, the provisions will take effect in no later than 15 days and would end on December 31, 2020.

Emergency Paid Sick Leave Time for Affected Employees

The original legislation provided for 80 hours of emergency paid sick time for full-time employees (pro-rata for part-time employees) for their own COVD-19 related reasons and  2/3rd pay to care for a family member.

The amendment now provides for emergency paid leave for employees who are unable to work or telework for the following reasons:

Reasons for Sick Leave

    1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
    2. a health care provider has advised the employee to self-quarantine because of COVID-19;
    3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    4. the employee is caring for an individual subject or advised to quarantine or isolation;
    5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
    6. the employee is experiencing substantially similar conditions as specified by the Secretary of HHS, in consultation with the Secretaries of Labor and Treasury.

Amount of Pay of Sick Leave

The amendment also caps paid leave at $511 per day ($5,110 in total) where leave is taken for the employee’s own illness or quarantine and $200 per day ($2,000 in total) where leave is taken for caring for others or school closures.

Use of Emergency Paid Time

    1. Sequencing.  The bill provides that an employee can first use the emergency paid sick time before using other paid time off provided by an employer.
    1. Coordination with existing policies. Importantly, if an employer already offers paid sick leave to its employees, emergency paid sick leave must be in addition to the already-existing leave. An employer cannot amend its sick leave policy to avoid offering additional leave.
    1. No discrimination or retaliation. The bill also prohibits discrimination or retaliation against an employee for taking a coronavirus-related leave.
    1. Tax credit. Finally, to help defray the cost of the paid leave, the bill makes available a tax credit equal to 100% of sick leave wages paid by an employer.

Unemployment Benefits Expanded 

The bill also provides for emergency grants to states for activities related to processing and paying unemployment insurance (UI) benefits, under certain conditions, including requiring employers to provide notice of potential UI eligibility to laid-off workers.

As noted above, the Senate will consider this legislation this coming week.  Although the broad parameters of the bill are likely to remain in place, we will continue to provide updates as some changes from the Senate should be anticipated.

Once signed, the law would be effective within 15 days and will require employers to take quick action to comply, including with required workplace postings and new or amended FMLA, leave of absence, and sick time or paid time off policies. Your employment law attorney can assist your organization in understanding and complying with this pending law.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2020.

Accommodations Under the ADA – Are You Doing It Right?

 By:  Claudia D. Orr, Plunkett Cooney

 

As you may know, the United States Court of Appeals for the Sixth Circuit has become more pro-employee over the last decade or so much to my disappointment. So when I saw a new published decision by the appellate court that focused on the Americans with Disabilities Act, I was fairly certain how it would come out.  Unfortunately for employers, I was right. Let’s look at the case.

Fisher v. Nissan North America, Inc. is a case that arose out of the Middle District of Tennessee. In 2003, plaintiff Michael Fisher began working for Nissan as a production technician attaching doors, hoods and trunks on vehicles as they pass by on the production floor. He generally received positive performance reviews and one noted that he had a great attitude.

Unfortunately, Fisher’s kidney function had declined by 2015. When Fisher requested a transfer to an easier position, his supervisor responded “I could put you somewhere, but it ain’t for this kind of stuff. You just need to go on, go on out.” So, that is what Fisher did. He “went on out” on an extended leave of absence drawing long term disability pay.

But, there is a happy twist to the story. Fisher received a kidney transplant in Aug. 2016. While he still felt sick and fatigued, his long term disability pay was running out and Nissan’s human resources department warned him that if he was not able to extend his leave, his job would end. He was also warned that he would not be permitted to return with restrictions. At Fisher’s prompting, his physician cleared him to return to work on Monday, Oct. 17, 2016.

Fisher was returned to work in a position that everyone thought would be easier, but it wasn’t. When he asked if he could take extra breaks or work half time, Nissan refused. Fisher asked his supervisor if he could transfer to another position and was told “yes, maybe, you know, we’ll see.” Clear as mud.

Just three days later, Fisher’s physician had a change of heart and wrote Nissan indicating that Fisher was risking his health and needed at least another month off to build up his strength, and that ideally he would be returned working half-time before returning to full-time work. Thus, before the transfer request was decided, Fisher was granted additional leave.

In late November, Fisher was cleared to return to work before his extended leave ended. Nissan was asked to provide frequent bathroom breaks to prevent damage to the new kidney. Also, because Fisher still hadn’t acclimated to the anti-rejection medicines, he suffered flu-like symptoms and needed time off for doctor’s appointments. He began to miss work and was disciplined for his absences.

Each time he was disciplined, Fisher described the transplant and the symptoms he suffered and requested accommodation, including a transfer to an easier job. His supervisor expressed sympathy but added “my hands are tied.” Fisher was denied working half-time and, because Nissan made such a big deal about the bathroom breaks, he eventually stopped requesting them.

On Feb. 3, 2017, Fisher was issued a final warning. Fisher claimed one of the human resources representatives stated the following during that meeting:

Nissan needed restrictions, not suggestions, and Fisher responded that he had not been permitted to return to work with restrictions. The representative “went ballistic” and said that Fisher could not “just be going home for a stomachache.” According to Nissan’s notes from the meeting Fisher said that the company was “not willing to work with [him]” and requested “another job.” Human resources asked, “If you cannot come to work, what will moving you to another job accomplish?” Fisher responded, “Let’s do it and we’ll see.”

There was no further discussion concerning a possible transfer. Instead Fisher received the final warning. Lesson number one: no matter how frustrated management becomes with an employee’s medical issues and absenteeism, it can never be displayed to the employee. Comments, demeanor, and tone will all be interpreted by the employee and used against the company.

As Fisher left the meeting, “a representative told Fisher that he had never ‘seen anybody come back’ from a final written warning.” I guess it’s unnecessary for me to discuss lesson number two.

Fisher left the building without telling anyone, including his supervisor, and never returned. A week later he was fired for absenteeism.

I don’t know about you, but I immediately thought Fisher’s actions equated to job abandonment. He walked off the job and then there were several days of no call, no show, right? But read on.

Fisher filed a lawsuit claiming, among other things, that Nissan failed to accommodate his disability. The district court granted Nissan’s motion to dismiss and Fisher appealed.

The appellate court reversed. It explained that when the plaintiff is claiming a failure to accommodate, the claim necessarily involves direct evidence of discrimination. Nissan argued against such a per se rule, noting that it would go against numerous previously published opinions of the appellate court. The court rejected that argument stating that all of those cases were wrong because they had all relied on a case decided under the Rehabilitation Act.

For failure to accommodate claims, the plaintiff must show: (1) he has a disability, and (2) that he is “otherwise qualified” for the job at issue despite the disability: (a) without accommodation, (b) with an “alleged” essential job requirement eliminated, or (c) with a reasonable accommodation. The court emphasized that Nissan had to prove (1) that the essential job requirement at issue was in fact essential (and therefore a business necessity), or (2) that the proposed accommodation would be an undue hardship.

Here’s one of the problems with a per se direct evidence rule: while an employer may use a legitimate, nondiscriminatory reason as a “shield” when indirect evidence of discrimination is required, “such a ‘neutral policy is of no moment’ under the direct test.”

The appellate court explained that a school lacking an elevator could not deny a teacher with mobility problems classes on the first floor and then fire the teacher for being late to classes on the second floor. Ok, that makes sense.

But I still have a beef with the court’s analysis. What about no call/no show and walking off the job without telling his supervisor? There is no discussion about this in the court’s opinion, but Fisher’s failure to follow these rules seems unrelated to his disability and sounds like a lawful reason for discharge. Rather than terminating Fisher for attendance, perhaps his voluntary resignation should have been accepted following his job abandonment. But, we don’t know whether Nissan had the right rules in place to do this.  This may be lesson number three.

The court indicated that there were three potential accommodations that could have assisted Fisher with his return to full-time employment (a transfer to an easier job, extra breaks, or a temporary part-time schedule). On remand, the focus may be on whether there were other vacant positions that Fisher was qualified to perform that would have better accommodated his condition and, if so, whether assigning him to such position was an undue hardship.

The court also discussed the ADA’s “mandatory” interactive process. “If the interactive process was triggered [by the employee’s request for an accommodation] but not successfully resolved, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.’”

The court found Nissan’s initial attempts to be in good faith. It initially assigned Fisher to a different job that was thought to be easier and granted him more leave when he discovered he was not ready to return to work. But, when he returned to work, still struggled and suggested he should be transferred again, Nissan dropped the ball. Thus, the appellate court found that Nissan was not entitled to summary judgment of the failure to accommodate claim.

As a general rule, the party who fails to engage in this process in good faith will lose. Lesson number four: Employers should always propose counter-solutions during the interactive process and not just say no to what is being requested. Nor should an employer ever decide what it will and will not do before sitting down and talking with the employee.

Finally, keep in mind, it is not one and done. Medical conditions change and accommodation outcomes are not always successful. Sometimes further discussions and different accommodations need to be tried. Be flexible.  Be creative.

But, employers also have some rights. An employer has the right to receive some basic information including (1) a confirmation of the medical condition/disability (if not obvious and if not otherwise already disclosed in other documentation such as disability insurance paperwork), (2) the affect and extent of the medical condition on the employee’s ability to perform major life activities and/or his major bodily systems, (3) whether the  employee has the ability to perform the essential functions of the job (with or without reasonable accommodation), and (4) whether accommodation is needed and, if so, for how long.  Other questions may be appropriate depending on the circumstances, but the Equal Employment Opportunity Commission has indicated that using the same questionnaire all the time will violate the ADA.  The questions posed should be appropriate to the circumstances.

One of the federal circuits has taken the position in the last year or so that providing a leave of absence is not reasonable accommodation because the ADA is intended to assist the employee in doing his job, and not to avoid the job altogether. That is not the Sixth Circuit’s position, but perhaps one day the Supreme Court will weigh in on the issue. Until it does, generally speaking, employers in the Sixth Circuit (Kentucky, Tennessee, Ohio and Michigan) with 15 or more employees must provide an employee with a leave of absence as long as it is medically necessary until the employer can show it causes an undue hardship. Incidentally, “undue hardship” is far more than an inconvenience and, the larger the employer and more resources and employees it has, the more difficult it is to demonstrate.

The ADA presents some of the most complex legal issues facing employers today. If you need assistance with issues under the Americans with Disabilities Act, contact an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.  

 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2020.

Driver’s Licenses Valid for I-9 Purposes Despite Real ID Noncompliance

By: Alexandra LaCombe, Jackson Lewis, P.C.

 

At a glance

Since 2013, a growing number of states have been issuing driver’s licenses in one form or another to undocumented workers.  Although Michigan is not currently one of these states, Michigan employers need to be aware of their responsibilities when a new hire is presenting a noncompliant license for I-9/employment verification purpose once REAL ID law goes into effect.

Background

The Trump Administration has been conducting “a department-wide study of the effects of issuing state driver’s licenses to undocumented immigrants.” Department of Homeland Security spokesperson said that the study is tied to matters of national security, citing the Administration’s concern that the licensing laws “make it easier for terrorists and criminals to obtain fraudulent documents.”

Driver’s licenses issued to undocumented immigrants will not be REAL ID compliant. The REAL ID law, which will go into full effect on October 1, 2020, establishes security standards for the issuance of driver’s licenses and other identification that are needed to enter federal facilities, nuclear power plants and to board airlines – even for domestic flights.  In order to obtain a REAL ID compliant driver’s license, an individual must, among other things, have legal status in the United States. Under the REAL ID regulations, states may continue to issue licenses that are not REAL ID compliant but they must be marked prominently with annotations such as “not for federal identification purposes” or “driving only.”

Most of the states that are issuing “driving only” licenses have large populations of undocumented immigrants.  Because undocumented immigrants will still have to pass all required driving tests, state authorities believe that licensing these individuals yields safer drivers.  In this case, the state and federal laws are aimed at achieving different objectives—with employers facing potentially conflicting information.

What it means for employers

Under current guidelines, licenses marked for driving purposes only should still be accepted as List B/identification documents for Form I-9 and E-Verify purposes if they meet the regulatory requirements — contain a photograph or information such as name, date of birth, gender, height, eye color, and address.  As the REAL ID deadline approaches, employers need to be vigilant regarding further updates on this issue.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 936-1929 or alexandra.lacombe@jacksonlewis.com.  Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Jackson Lewis, P.C.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2020