News and Insights

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Written By: Kylie E. Mote

The United States Department of Labor’s (DOL) Wage and Hour Division has issued revisions to the regulations implementing the paid leave provisions of the “Families First Coronavirus Response Act” (FFCRA). Responding to a recent federal court decision striking down key provisions of the DOL’s previously-issued regulations, the DOL has reaffirmed certain regulations, amended other regulations, and further explained the rationale behind its positions. The revised regulations went into effect on September 16, 2020.

FFCRA PAID LEAVE BASICS

Signed into law on March 18, 2020, the FFCRA authorized an emergency relief package providing support for individuals impacted by the COVID-19 public health emergency, including temporary paid sick and emergency family leave for eligible employees. The law applies to private sector employers with fewer than 500 employees as well as government entities, though certain exceptions may apply.

The FFCRA became effective on April 1, 2020 and is designated to expire on December 31, 2020.

Paid Sick Leave

The FFCRA provides paid sick leave to employees who are unable to work (or telework) due to the following COVID-19-related reasons:

1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.

2) The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.

3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in subparagraph (2).

5) The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 precautions.

6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.

Under the law, full-time employees are entitled to 80 hours of immediately-available paid sick leave. Part-time employees are entitled to paid sick leave in an amount that is equivalent to their normal work hours in a two-week period.

Employees must be paid their normal rate of pay or minimum wage – whichever is greater. With respect to self-care, paid sick leave is capped at $511/day and $5,110 in the aggregate. In cases in which an employee uses paid sick leave to care for others, the cap is $200/day and $2,000 in the aggregate.

Emergency Family Leave

The FFCRA (as an expansion of the Family Medical Leave Act or “FMLA”) provides up to 12 weeks of emergency family leave (or ten weeks of emergency family leave and two weeks of paid sick leave) to eligible employees who are unable to work (or telework) due to a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19.

Eligible employees are any part-time or full-time employee who has been on the job for at least 30 days.

An employer is permitted to designate the first ten days of emergency family leave as unpaid (although an employee can opt to use vacation time or other paid time off, including paid sick leave provided under the FFCRA, to cover the unpaid time).

Beyond the first ten days, emergency family leave is paid at two-thirds the employee’s normal rate of pay with a cap of $200/day and $10,000 in the aggregate.

Emergency family leave does not change the overall amount of FMLA leave available to employees during an applicable FMLA 12-month period.

THE REVISED REGULATIONS

Narrowing the definition of “healthcare provider”

Under the FFCRA, employers of “healthcare providers” may elect to exclude such employees from taking paid leave. While the initial regulations broadly defined “healthcare provider” to include nearly any person employed in a doctor’s office, hospital, or clinic, the revised regulations significantly narrow this definition to the following:

1) A “healthcare provider” as defined by the FMLA. The definition includes doctors (M.D.s and D.O.s), podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, certain Christian Science Practitioners, and other limited health care providers; or

2) Any other employee of a covered employer who is capable of providing health care services, “meaning he or she is employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This category of “healthcare providers” includes nurses, nurse assistants, medical technicians, and laboratory technicians.

The revised regulations provide examples of employees who will not be considered a “healthcare provider” for purposes of the FFCRA, including IT professionals, maintenance staff, human resources personnel, records managers, billers, and consultants.

Relaxing the requirement for providing notice and supporting documentation

The initial regulations required employees to provide employers with notice and documentation establishing the need for paid leave prior to taking the leave.

The revised regulations relax that standard. Rather than dictating that employees provide notice and documentation before taking leave, the revised regulations clarify that employees may provide documentation “as soon as practicable.”

In cases in which the need for leave is foreseeable, e.g., an employee knows that his or her child’s school is closed in advance, the DOL anticipates that the employee generally will provide notice before taking leave.

Reiterating paid leave is only available to employees “unable” to work/telework

An employee’s reason for taking paid leave must be the sole reason the employee is unable to work/telework (i.e., “but-for” the employee’s need to take leave, the employee would otherwise be working).

This means that an employee cannot use paid leave if his or her employer closes its worksite or otherwise does not have work available for the employee for reasons other than the employee’s need to take leave (i.e., paid leave is not available to employees who are furloughed, laid off, or on a reduced schedule due to lack of work or business).

With that said, the revised regulations underscore that employers may not arbitrarily withhold work or reduce an employee’s hours to prevent the employee from taking paid leave. An unavailability of work must be due to legitimate, non-discriminatory business reasons and not simply that an employer is attempting to thwart an employee’s ability to take paid leave.

Clarifying when an employee can take intermittent leave

For employees who are teleworking or working onsite, the revised regulations reiterate that employees may take intermittent emergency family leave or paid sick leave only with the consent of their employer.

With respect to employees who work onsite, the revised regulations also reaffirm that employees can only take intermittent paid sick leave because of a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19 (i.e., employees who work onsite cannot take intermittent paid sick leave for any other qualifying reasons).

The revised regulations also elaborate on the meaning of “intermittent.” The DOL provides an example of an employee’s child who is participating in hybrid learning in which the child attends school only certain days during the week and is at home the remaining days. In this case, the DOL clarifies that an employee who takes emergency family leave, for example, Mondays and Wednesdays (when the employee’s child is not in school) and then works Tuesdays, Thursdays, and Fridays (when the employee’s child is in school) is not considered to be taking intermittent leave (and therefore does not require consent of his or her employer).

TAKEAWAYS FOR EMPLOYERS

Employers should make necessary adjustments to their FFCRA paid leave policies and procedures to ensure compliance with the revised regulations. Importantly, healthcare employers should take note of the DOL’s updated (and much narrower) definition of “healthcare provider” when determining which employees can be exempted from the FFCRA’s paid leave benefits.

The attorneys at Milligan Lawless will continue to update employers on various workplace issues arising from the COVID-19 public health emergency.

If you have any questions regarding how the FFCRA’s paid sick leave or emergency leave requirements affect your workplace, please contact John Conley or Kylie Mote at (602) 792-3500.

The Best Lawyers in America© is the longest-running, peer-review publication in the legal profession.  Every year, Best Lawyers conducts comprehensive surveys of tens of thousands of lawyers who confidentially evaluate their professional peers.  Based on the results of these surveys, the publication designates the year’s leading lawyers in all 50 states and the District of Columbia.

The Milligan Lawless attorneys recognized in the 2021 edition are:

2021 Best Lawyers

  • Bryan S. Bailey: Health Care Law
  • John A. Conley: Administrative/Regulatory Law
  • Robert J. Itri: Commercial Litigation; Copyright Law; Litigation – Intellectual Property; and Trademark Law
  • Steven T. Lawrence: Corporate Law
  • Thomas A. Maraz: Construction Law
  • Robert J. Milligan: Health Care Law
  • James R. Taylor: Health Care Law


2021 Best Lawyers: Ones To Watch

  • Lauren A. Crawford: Commercial Litigation
  • Kylie E. Mote: Health Care Law
  • Miranda Preston: Health Care Law
Kylie E. Mote
Written By: Kylie E. Mote

In a landmark decision issued on June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and gender identity.  Resolving a longstanding split among federal courts as to whether Title VII’s protections extend to LGBTQ employees, the Court ruled 6-3 that Title VII’s prohibition on sex-based employment discrimination encompasses sexual orientation and gender identity discrimination.

The Basics of Title VII

Title VII of the Civil Rights Act of 1964 is a federal law prohibiting employment discrimination based on race, color, religion, sex, or national origin (i.e., protected classes).  The law applies to any public or private sector employer with 15 or more employees, employment agencies, labor unions, and training programs.

Title VII makes it unlawful for employers to discriminate in any aspect of employment, including recruiting, hiring, promoting, training, terminating, and providing benefits. Additionally, Title VII prohibits employers from retaliating against employees for complaining about discrimination, filing a charge of discrimination, and/or participating in an investigation of discrimination or legal proceeding.

The Court’s Decision

The Court’s decision is in response to a trio of consolidated cases (captioned Bostock v. Clayton County) alleging employment discrimination: a child welfare coordinator was fired after his employer learned of his participation in a gay softball league; a skydiving instructor was fired after informing a customer that he is gay; a transgender funeral director was fired after telling her boss about her plans to transition.

In all three cases, the employee asserted unlawful sex discrimination in violation of Title VII. Rejecting an argument by the employers that Title VII only prohibits sex discrimination on the basis of an employee’s status as a male or female, the Court declared that it is impossible for employers to discriminate on the basis of sexual orientation or gender identity without impermissibly discriminating based on sex.  Writing for the majority, Justice Neil Gorsuch opined, “An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.”

The Court’s full opinion can be accessed here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Takeaways for Employers

Employers should review their employment policies and practices to ensure compliance with the Court’s ruling.  Specifically, employers should make certain that their anti-discrimination policies include express language prohibiting discrimination and/or harassment based on sexual orientation and gender identity.  Employers should also consider conducting employee training addressing anti-discrimination and harassment policies.

For more information regarding the implications of the Court’s decision, please contact attorneys John Conley or Kylie Mote at (602) 792-3500.

We are pleased to announce today that Chambers USA ranked Milligan Lawless, P.C. and 3 of our attorneys among the best in Arizona for 2020.  Among Arizona law firms, Milligan Lawless achieved a Band 1 ranking, Chambers USA’s highest recognition, in the Healthcare practice area.

The firm received the following “Leading Individual” rankings for Phoenix attorneys:

  • Bryan S. Bailey – Healthcare, Band 2
  • Steven T. Lawrence – Corporate/M&A, Band 3
  • Robert J. Milligan – Healthcare, Band 1

Chambers USA is an annual ranking that assesses each law firm and attorney on technical legal ability, professional conduct, client service, commercial awareness/astuteness, diligence, commitment and other qualities most valued by their clients. Additionally, independent interviews with clients and confidential submissions of law firms are part of the Chambers research and evaluation process.

Bryan S. Bailey
Bryan S. Bailey
Robert J. Milligan
Robert J. Milligan
Steven T. Lawrence
Steven T. Lawrence
Written By: Kylie E. Mote

The United States Department of Labor’s (“DOL”) Wage and Hour Division has just published its first round of guidance addressing certain provisions of the newly-enacted “Families First Coronavirus Response Act” (“FFCRA”).  Signed into law on March 18, 2020, the FFCRA is an emergency relief package aimed at assisting individuals impacted by the COVID-19 (“Coronavirus”) public health emergency.  Among other support, the FFCRA provides eligible employees with temporary paid leave benefits, including paid sick leave and family leave.

While the DOL has not yet issued official regulations to help clarify the FFCRA’s paid leave provisions, it has released a preliminary set of “Questions and Answers” in an effort to provide employers and workers with general information about the law’s requirements.  Following below are the key takeaways from the DOL’s initial guidance.

To see answers to frequently asked questions about the FFCRA’s paid leave benefits, please refer to our earlier notice titled “Information for Employers on New Coronavirus Relief Law”

DEPARTMENT OF LABOR GUIDANCE

FFCRA EFFECTIVE DATE:

While it was previously anticipated that the FFCRA would take effect on April 2, 2020, the DOL clarifies that the law’s effective date is April 1, 2020.

REQUIRED NOTICE TO EMPLOYEES:

The FFCRA requires employers to post a notice to employees of their rights to paid leave under the law.  The notice must be posted in a conspicuous location in the workplace.  On March 25, 2020, the DOL released a model notice, available here: DOL Notice.

HOW TO COUNT EMPLOYEES:

Both the paid sick leave and family leave provisions of the FFCRA apply to private employers with fewer than 500 employees.  The DOL specifies that employers should include in that count:

  • Full-time and part-time employees within the United States;
  • Employees on leave;
  • Temporary employees who are jointly employed by the employer and another company (regardless of whether the jointly-employed employees are maintained on only one employer’s payroll); and
  • Day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship).

Workers who are independent contractors (under the standards of the Fair Labor Standards Act) are not considered employees and should therefore not be included in the count.

COUNTING EMPLOYEES OF RELATED BUSINESSES:

For purposes of counting employees, the DOL clarifies that a corporation, including its separate establishments and divisions, is considered a single employer and all of its employees must be counted toward the 500-employee threshold.

If a corporation has an ownership interest in another corporation, the two corporations will typically be considered separate employers unless they qualify as joint employers under the Fair Labor Standards Act.  If two entities qualify as joint employers, all of their common employees must be counted in determining whether FFCRA paid leave benefits are required.

The DOL’s guidance also refers to the integrated employer test under the Family and Medical Leave Act for determining whether two or more entities are separate or combined for purposes of calculating the number of employees.  Whether two entities qualify as an integrated employer depends on multiple factors, including whether they have common management, shared operations, and a degree of common ownership.  If the two entities constitute an integrated employer, then employees of both entities must be included in the count.

For more information on whether an entity qualifies as a joint or integrated employer, please contact the attorneys at Milligan Lawless.

EXEMPTIONS FOR SMALL BUSINESSES:

While the FFCRA’s paid leave requirements apply to all private employers with fewer than 500 employees, the law provides an exemption to businesses with fewer than 50 employees if the benefits would jeopardize the viability of the business.

The DOL’s guidance does not provide further information on the process for seeking the exemption, except to recommend that employers document why they qualify for the exemption.

The DOL notes that the small business exemption will be addressed in detail in its forthcoming regulations.  It also emphasizes that employers should not send any materials to the DOL for purposes of seeking an exemption.

CALCULATING HOURS FOR PART-TIME EMPLOYEES:

The DOL reiterates that all part-time employees are entitled to paid leave based on their average number of work hours in a two-week period.

If an employee works a varied schedule, the employer may use a six-month average to calculate the employee’s average daily hours.

If the employee has not been employed for at least six months, then the employer may use the number of hours that it and the employee agreed the employee would work at the time of hiring.

If there is no such agreement, an employer 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.

OVERTIME HOURS:

The DOL’s guidance makes clear that employers must pay employees for hours they would have been normally scheduled to work even if that number is more than 40 hours in a week.

With that said, the DOL emphasizes that paid sick leave benefits are still capped at 80 hours total over a two-week period, noting by way of example that an employee who is scheduled to work 50 hours in a week may take 50 hours of paid sick leave during that week but the employee would only be eligible to take 30 hours of paid sick leave the following week.

The FFCRA does not require employers to pay a premium rate of pay for overtime hours.

REGULAR RATE OF PAY:

The DOL reiterates that employers must pay an employee for paid leave based on the employee’s regular rate of pay or two-thirds of the regular rate, depending on the employee’s reason for taking leave (payment is subject to caps).  Commissions, tips, and/or piece rates should be included in calculating an employee’s regular rate of pay.

For purposes of the FFCRA, the regular rate of pay is the average of an employee’s regular rate over a period of up to six months to the date on which the employee takes paid leave.  If an employee has been employed for less than six months, the regular rate is the average of the employee’s regular rate of pay for each week he or she has worked for the employer.

An employer can also compute an employee’s regular rate of pay by adding all compensation that is part of the regular rate over the prior six months (or lesser period of time worked) and dividing that sum by all hours actually worked in the same period.

LEAVE FOR AN EMPLOYEE CARING FOR A CHILD DUE TO SCHOOL CLOSING OR CHILDCARE UNAVAILABLE:

The DOL’s guidance confirms that an employee who is using paid leave to care for a child whose school is closed, or whose childcare provider is unavailable due to COVID-19 factors, may be eligible to use both paid sick leave and family leave under the FFCRA.

In this case, an employee could initially utilize two weeks of paid sick leave.  This period would cover the first ten days of family leave, which would otherwise be unpaid.  The employee could then take an additional ten weeks of family leave, as provided under the FFCRA.

NO RETROACTIVITY; PRIOR LEAVE NOT COUNTED:

The DOL clarifies that paid leave benefits provided under the FFCRA are not retroactive – the law does not take effect until April 1, 2020.

Additionally, the DOL is clear that paid leave provided to an employee prior to the law’s effective date does not count toward the new requirements – even if the paid leave was taken for reasons covered by the FFCRA.

ADDITIONAL INFORMATION FOR EMPLOYERS

PAID SICK TIME PROVIDED UNDER ARIZONA LAW:

In addition to the paid leave requirements of the FFCRA, Arizona employers must ensure continued compliance with their obligations under Arizona’s Fair Wages and Healthy Families Act.  This state law, which was enacted in 2017, entitles all Arizona employees to paid sick time, subject to certain caps and requirements.

Arizona’s law permits employees to use paid sick time for the following reasons:

  • An employee’s medical care, illness, injury, or health condition;
  • Care of an employee’s family member with an illness, injury, health condition, or need for medical care;
  • A public health emergency; and
  • Issues related to domestic violence, sexual violence, abuse, or stalking affecting the employee or employee’s family member.

EMPLOYEES ENTITLED TO OTHER PAID TIME OFF BENEFITS:

The FFCRA prohibits employers from requiring employees to use vacation or other paid time off benefits, including paid sick time provided under Arizona law, prior to utilizing the paid leave provided under the FFCRA.

An employee who takes family leave pursuant to the FFCRA may elect to utilize vacation or other paid time off benefits to cover the initial ten days of unpaid leave, but an employer cannot require it.

EXCLUSION OF HEALTHCARE PROVIDERS:

The FFCRA states that an employer of an employee who is a healthcare provider or an emergency responder may elect to exclude such employee from the paid leave provisions.

The FFCRA also authorizes the DOL to exclude certain healthcare providers and emergency responders from receiving paid leave benefits.

The FFCRA incorporates by reference the following definition of healthcare provider set forth in the Family and Medical Leave Act:

  • A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
  • Any other person determined by the Secretary to be capable of providing health care services. Others capable of providing health care services include only:
  • Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;
  • Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
  • Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
  • Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
  • A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.

Notably, the definition of healthcare provider does not include nurses or medical assistants.  As such, an employer should not (absent further direction from the DOL) exclude them from the paid leave benefits under the FFCRA.

The FFCRA does not define emergency responder, but it would be reasonable to assume that it includes EMTs and paramedics.  As the DOL continues to issue guidance on the FFCRA requirements, it may address what constitutes an emergency responder for purposes of the law (including whether nurses and other healthcare personnel who do not meet the definition of healthcare provider may be considered emergency responders).

The FFCRA is also not clear on whether a healthcare provider or emergency responder can be excluded from all paid leave benefits or only specific benefits. For example, the law does not clarify whether healthcare providers or emergency responders may be entitled to paid sick time in the event they personally become ill with COVID-19.

The DOL will hopefully provide additional guidance on the healthcare provider/emergency responder exclusion prior to the FFCRA’s effective date.

The attorneys at Milligan Lawless will continue to update employers on various workplace issues arising from the rapidly-developing COVID-19 public health emergency.

If you have any questions regarding how the FFCRA’s paid sick leave or emergency leave requirements affect your workplace, please contact John Conley at (602) 792-3535 or Kylie Mote at (602) 792-3523.

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