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The Complex Web of Employment Law Regulations Expands: The Latest COVID-19 Considerations for Massachusetts Employers
By: Matthew Mitchell & Amanda Thibodeau
In response to the COVID-19 outbreak, government regulators have created a web of legal requirements intended to promote employee safety and economic stability. The count, scope, issuance rate, and complexity of these new rules are unprecedented.
Compliance with this ever-expanding, and sometimes inconsistent, landscape of COVID-19 regulations is a clear and present challenge for employers.
We’ve prepared a summary of the most recent COVID-19 regulations that apply to Massachusetts employers, as of July 2020. It is critical that Massachusetts employers identify, understand, and comply with these standards.
Learn more in our COVID-19 Alert.
DOL Posts Temporary Rule Issuing Regulations on Families First Coronavirus Response Act
On April 1, 2020, the U.S. Department of Labor (DOL) posted a temporary rule issuing regulations on the Families First Coronavirus Response Act (FFCRA). In particular, the new regulations deal with implementation of the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) portions of the FFCRA. The regulations are temporary and will expire December 31, 2020, and will not affect the Family Medical Leave Act beyond that date.
The new regulations shed light on several important areas of the FFCRA.
Our COVID-19 Alert addresses a few key takeaways on the following topics:
- Self-quarantine
- Effect on FMLA Leave and Paid Time Off Used Concurrently
- Small Business Exemption
- Intermittent Leave
- Notice and Leave Documentation
The new regulations take effect immediately and contain many more details concerning the implementation of the FFCRA. Please see our previous Alert on the FFCRA for additional requirements under the new law, or reach out to our Morse Employment Law Team for help.
IEP Meetings Covered Under FMLA
By: Amanda Thibodeau
DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA
Most employers and their human resources specialists are acquainted with the protections afforded to employees under the Family and Medical Leave Act (FMLA). Quite often employers interact with the FMLA when an employee needs time off of work to recover from an extended illness or other medical issue, or to care for an employee’s family member. A trap for the unwary, however, presents itself in a new Opinion Letter issued by the Department of Labor on August 8, 2019.
The Opinion Letter (FMLA2019-2-A) responds to an anonymous request from the parents of a school-aged child inquiring whether the FMLA protects the parents’ ability to take time off of work to attend their children’s Individualized Education Program (IEP) meetings. The DOL unequivocally reached the conclusion that parents’ attendance at such IEP meetings were covered by the protections of the FMLA.
In the facts presented to the DOL, the children had qualifying health conditions under the FMLA that were certified by the children’s doctors. The children’s doctors had also provided documentation to the wife’s employer that the children required intermittent care that would require her to miss work on occasion. The wife’s employer had previously granted the wife’s requests for leave under the FMLA to bring the children to medical appointments in accordance with these certifications; however, the employer refused to grant FMLA leave for the wife to attend the children’s IEP meetings with the school, which are held four times per year.
The DOL focused on several aspects of the FMLA including that the FMLA permitted leave “to care for” a family member with a serious health condition, including “to make arrangements for changes in care.” See 29 C.F.R. § 825.124(b). In narrowing in on these clauses, the DOL also relied upon its previous opinion letter (FMLA94, 1998 WL 1147751 (Feb. 27, 1998)), which found an employee was entitled to take FMLA leave to attend “care conferences” related to her mother’s health conditions. Similarly, the DOL found that wife’s attendance at the children’s IEP meetings was “clearly essential” to the children’s care and noted that the children’s doctors need not be present at these meetings to qualify for intermittent leave under the FMLA.
Employers or human resources specialists presented with similar situations should be mindful of this guidance when analyzing whether such leave requests qualify under the FMLA. Proper training of managers is recommended, including on what types of school meetings are covered and which may not be, and what types of documentation the managers can request from the employee to support the leave request.
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
Massachusetts Paid Family and Medical Leave Update: Governor Baker and Legislative Leaders Issue Joint Statement Delaying Employer Contributions
By: Amanda Thibodeau
On June 11, 2019, Massachusetts government leaders announced their intent to amend the Massachusetts Paid Family and Medical Leave Act (the “PFMLA”) to delay the employer payroll tax contribution start date, required by the PFMLA, to October 1, 2019 (from the prior start date of July 1, 2019). In connection with the announcement, Governor Charlie Baker, Senate President Karen Spilka, and House Speaker Robert DeLeo issued the following joint statement:
“To ensure businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three month delay to the start of required contributions to the program. We will also adopt technical changes to clarify program design. We look forward to the successful implementation of this program this fall.”
The announcement appears to be a response to concerns raised by industry groups related to compliance deadlines associated with the rollout of PFMLA. The changes to the PFMLA described in the announcement still require confirmation by both the House and Senate, and the scope of the other “technical changes” to the PFMLA anticipated in the announcement remains unclear.
Morse is monitoring developments concerning the PFMLA, and will provide further updates as appropriate. For additional information concerning the PFMLA, please see Morse’s prior alerts on the subject:
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
Same Sex Spouses are Now Entitled to FMLA Leave
By: Maura Malone
In June, the United States Supreme Court issued a decision in United States v. Windsor which struck down the federal Defense of Marriage Act (DOMA) and cleared the way for federal recognition of same-sex marriage.
To comply with the Supreme Court’s decision, the U.S. Department of Labor (DOL) has now revised previously issued guidances on the Family Medical Leave Act (FMLA) and expanded FMLA coverage to legally married same-sex couples.
The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employees had not taken leave. Prior to the DOL’s revisions, although same-sex couples could take FMLA leave to care for or bond with a child, they were not entitled to FMLA leave to care for a same-sex spouse.
The DOL’s revisions delete references to DOMA from its FMLA guidances and clarify that under the FMLA, the term “spouse” means:
. . . a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.
Because the definition of “spouse” is tied to the definition of marriage in the state where the employee resides, FMLA spousal rights do not apply to employees whose same-sex marriage is not recognized by the state in which they live.
As a result of the DOL’s revisions, employers with employees in states which recognize same-sex marriage should ensure that their FMLA policies and practices provide for leave to an employee whose same-sex spouse requires care.
Employers should contact a member of the Employment Group with any questions related to FMLA benefits for employees in a same-sex marriage.
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