Family and Medical Leave Act

Federal law, as well as many state and local laws, require employers to display notices and posters in the workplace advising employees of their rights.  With many employers operating remotely due to COVID-19, however, questions regarding these statutory posting requirements have arisen.  In response, on December 29, 2020, the United States Department of Labor released guidance addressing the permissibility of providing the required postings through electronic means.

By way of background, no less than 15 federal laws, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the Employee Polygraph Protection Act, require employers to display notices or posters in the workplace advising workers of their rights under such laws.  Generally speaking, the notices or posters must be physically displayed in a conspicuous location that can be easily accessed by all employees (break rooms and cafeterias, for instance, are common locations for this).
Continue Reading Pandemic or not, employers must still comply with notice-posting requirements under federal law

On April 14, 2020, Governor Murphy signed bill S2374 into law, marking the second time since the start of the COVID-19 outbreak that the New Jersey Family Leave Act (NJFLA) has been amended. Our blog post about the prior change is available here. The NJFLA, which covers all employers in the state with 30

Today the Department of Labor (DOL) updated the required poster that employers subject to the Families First Coronavirus Response Act (those with fewer than 500 employees) must place on their premises to satisfy their employees of the rights requirement under the Act. The update corrects the 10 weeks of paid sick leave under the Family and Medical Leave Act expansion cap amount to $10,000.

Since a vast majority of employees are now working remotely, the DOL has advised that employers may satisfy the standard notice requirement of hanging the poster in a conspicuous place on the employer’s premises (i.e., a kitchen, breakroom or other accessible area) by emailing, or directly mailing, the notice to employees, or by posting the notice on the employer’s internal or external website. Employers that are not fully remote must also post the notice. Similarly, employers who are currently all remote must remember to post the notice once in-office operations resume. 
Continue Reading DOL issues updated FFCRA notice poster

Yesterday the Department of Labor (DOL) issued the required poster that employers subject the Families First Coronavirus Response Act (those with fewer than 500 employees) must place on their premises to satisfy the employees of rights requirement under the Act.

Since a vast majority of employees are now working remotely, the DOL has advised that employers may satisfy the standard notice requirement of hanging the poster in a conspicuous place on the employer’s premises (i.e., a kitchen, breakroom or other accessible area) by emailing, or directly mailing, the notice to employees, or by posting the notice on the employer’s internal or external website. Employers that are not fully remote must also post the notice. Similarly, employers who are currently all remote must remember to post the notice once in-office operations resume.Continue Reading DOL issues FFCRA notice poster

The afternoon of March 18, 2020, the Senate passed H.R. 6201, the Families First Coronavirus Response Act. Division C of the Bill details the Emergency Family and Medical Leave Expansion Act, and Division E provides additional protections under the Emergency Paid Sick Leave Act. Both divisions apply to employers with fewer than 500 employees.

At a high level, these laws work together so that, under the Emergency Paid Sick Leave Act, qualifying employees will receive 80 hours of paid leave for immediate use, then they will received paid leave at two-thirds of the employee’s wages for the duration of a COVID-19 related Family and Medical Leave Act leave.

Key provisions of both laws are described below.

Emergency Family and Medical Leave Expansion Act (Effective 15 days after enactment)

This statute provides for additional benefits under the FMLA so that eligible employees will receive job protection and a paid component for certain COVID-19-related absences.

Which employers are covered? 

Employers with fewer than 500 employees are subject to the expansion. Part-time employees are included in this count to assess coverage.

The Secretary of Labor has authority “for good cause” to exempt (1) certain healthcare providers and emergency responders; and (2) small employers with fewer than 50 employees where the added expense would jeopardize the business. Under certain circumstances, the requirement to restore employees to their employment will not apply to businesses with fewer than 25 employees.

Additionally, an employer of employees who are healthcare providers or emergency responders may exclude these employees.

As a practical matter, larger employers that break up their workforce across smaller employing entities should review the respective employee populations for each entity to determine whether the expansion will apply to that population. In making this decision, consider what company is listed as the employer on an employee’s pay statement or review each Employer Identification Number separately.

Which employees are eligible?

Employees who have been employed for at least 30 calendar days will qualify for leave. Notably, the other FMLA employee eligibility requirements (e.g., hours worked) do not apply here.

Employers appear to have the discretion to exclude healthcare providers and emergency responders, though this language of the statute is in tension with the delegation of rulemaking authority to the Secretary of Labor to determine such exemptions.

What events will trigger coverage?

Employees who are unable to telework may use this leave if they must care for a child following the closure of a school or daycare, or other unavailability of childcare due to the coronavirus.

How does paid leave apply?

The first ten (10) days of FMLA leave may be unpaid (but see the Emergency Paid Sick Leave Act provisions, below).  Employees may elect to use their accrued vacation, personal or sick leave to cover this window, but employers may not require it. After this initial period, the employer will be required to pay at least two-thirds of an employee’s regular wages, according to their normally scheduled hours.

Payment is capped at $200 per day and $10,000 total for the duration of the leave.

The statute provides a formula for calculating payments for employees with varying or irregular schedules.

The expansion allows for up to twelve (12) weeks of coverage for all eligible employees in addition to the initial 10-day supplement provided by the Act.Continue Reading What employers need to know about the Families First Coronavirus Response Act (H.R. 6201)

On May 27, the U.S. Department of Labor (DOL) published updated model Family and Medical Leave Act (FMLA) notices and certification forms. Copies of the updated forms, which should be used through May 31, 2018, are available on the DOL’s website.

The most notable change to the forms is their reference to the Genetic