My good friend Amy Dieterich at Skelton, Tainter & Abbott, and I gave a presentation to the Central Maine Human Resources Association and the Lewiston Auburn Metropolitan Chamber of Commerce today. Amy does a lot of work as plaintiffs counsel in employment situations, and I focus exclusively on employment law from the employer’s perspective. She’s always a great thought partner for thinking through issues in this rapidly changing world. We put together some thorny hypothetical situations to help area HR professionals think through their decision making. There’s also a sample request for an accommodation of a vaccination requirement.
As Amy and I talked through the scenarios in preparation for today’s presentation, I got to thinking about where we might be headed in the world of employee leave. We are nearing the end of the expanded leave requirements under the Families First Coronavirus Response Act (FFCRA) on December 31, 2020, just as parents of school-age children might be exhausting their 12 weeks of potential leave. Who knows what new legislation will come as a result of the national election still in progress. Will Congress push back the FFCRA end date into 2021? What about Maine’s new earned pay leave law affecting employers with more than 10 employees starting January 1, 2021? Of course, there is also always the Americans with Disabilities Act and the State and Federal Family Medical Leave Act, which have not gone away (but in the case of “normal” FMLA, use the same pool of available leave as the FFCRA). There are so many layers to each situation it’s not even funny, although it does allow us to create some pretty fun hypotheticals for discussion.
Here are a couple of thoughts on where we stand in November 2020.
1. Whether it’s paid sick leave or FFCRA extended leave, by virtue of the fact that this leave is part of the FMLA, once the 12 weeks are used up, the employee is not entitled to any additional FMLA leave for another year. So even if Congress were to push back the December 31 expiration date of the FFCRA, It likely would not have any benefit to workers who are exhausting their leave under FMLA in 2020. Those workers would need to wait until another year turned over to get a refresh. They would not have job protection under the FMLA at that point, or Congress would have to amend the FMLA to allow for more than 12 weeks.
2. Even if FMLA leave it exhausted, the employee may be entitled to further ongoing leave if it is required as a reasonable accommodation under the Americans with Disabilities Act (ADA). This is not paid leave, but the employer may still need to engage in an interactive dialogue depending on the circumstances. That wouldn’t help for homeschool related leave in most cases, but if there is a qualifying disability for the employee or a close family member, it might be triggered. One clear situation would be if the employee themselves had contracted Covid and were suffering lingering effects that limited them in one or more major life activities, or were regarded as continuing to suffer such effects, . Yeesh. Talk about a lack of clear lines. It’s a minefield for employers to get it right in a situation like that, and employer has to take a very careful and interactive approach with the assistance of counsel and a meaningful dialogue with the employee.
3. Philosophically, I just don’t see the FMLA as being an appropriate long-term remedy for the nation’s COVID-related workforce challenges. The FFCRA was enacted in March assuming that we might beat the virus within the year. It is predicated on the assumption that after a brief time out, a worker will be able to come back to do their job. Those assumptions would not seem to hold, in my view, in a multiyear pandemic situation, especially for those who can’t work remotely. I think an honest reflection is needed, and a frank discussion that a longer-term approach may become necessary. In other countries like the UK, the government itself is covering people’s lost wages. If a sizable portion of the American workforce is simply not able to work as before because of COVID, is it truly fair to put that burden on America’s employers? Maybe things can be worked out for several weeks, but not for several years.
Bottom line: I think that if the virus continues well into 2021, a much more fundamental shift in the role of government and people’s lives will have to be part of the discussion. Employers should advocate for some of that burden to be removed from their shoulders. They are simply not set up to be long-term providers of support support and essential services to the American workforce if that workforce is not able to serve their business.