Lincoln Absence Advisor

Clarity on FFCRA

September 17, 2020 Lincoln Financial Group Season 1 Episode 25
Lincoln Absence Advisor
Clarity on FFCRA
Show Notes Transcript

There is a lot to talk about when it comes to the Family First Coronavirus Response Act (FFCRA) – in particular, the impact of schools reopening and the recent revisions from the Department of Labor in response to New York’s federal court ruling.  Learn more about:

  • What the DOL clarified in this week’s regulation updates
  • The impact of these regulation updates and clarifications on the recent New York court case
  • The three scenarios for schools reopening, when an employee is covered by the FFCRA

Join Lincoln’s Sarah Montgomery, Assistance Vice President and General Counsel for Group Protection and Annie Jantz, product lead for leave services, on this latest episode of Lincoln Absence Advisor

Resources:


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Karen Batson:

Hi again, everyone. This is Karen Batson marketing manager for leave and disability at Lincoln Financial Group. It's been a few months since the Family First Coronavirus Response Act or FFCRA was enacted. Recently, a few topics have raised questions, such as schools reopening, or a lawsuit in New York. In today's Lincoln Absence Advisor episode. I'm joined by Sarah Montgomery assistant vice president and senior counsel for group protection and Annie Jantz product lead for leave services. To help provide clarity on some of these topics. Welcome ladies. Thank you for joining us again, as you've both been on a few times.

Sarah Montgomery:

Thanks, for having me back.

Annie Jantz:

Thanks for having us.

Karen Batson:

We're here to talk about the FfCRA, which is actually our second conversation on this topic on the show, uh, and it's a bit timely with recent news from DOL. U h, first I have to ask, are you both seeing an increase in FFCRA questions lately with schools reopening the lawsuit that took place in New York? And of course now those DOL regulations, u m, and maybe why are some of these questions arising now?

Annie Jantz:

So I guess, you know, I can start Sarah, and then I'd be curious what you guys are seeing in your area, but, um, I've had a few more questions more recently from the employer on just how they should be administering this and some specific questions about documentation, what they should be looking for. But I don't know if I would say a huge spike in increase, at least from my perspective.

Sarah Montgomery:

And we're kind of in the same boat, as far as we didn't see from a legal compliance perspective, we, aren't seeing a lot of questions that are new, but the activity in New York definitely has created a flurry of activity since there were rules in place, a court invalidated a portion of them, and then the DOL responded. So it was good and it's been helpful to help get some more clarification around what we're doing going forward and what the DOL is intent was behind their regs. So the process is working as it should, since we're getting more clarification and more answers, which brings more stability and helps employers be able to plan and know what to do next and how to respond to employee requests for leave.

Annie Jantz:

Right? Yep. I agree.

Karen Batson:

For our listeners, maybe we can provide a high level overview of why FFCRA was established before we get into some details.

Annie Jantz:

Yeah. So I'll, I'll start. And then, um, Sarah definitely chime in with, you know, kind of your perspective as well. Um, so the FFCRA came to be because we will obviously, because of COVID-19 right, we had all of this activity taking place. People were not able to continue working. We had schools that were closing and parents that had to stay home and take care of their kids or help them to do remote learning. We also had people that were being quarantined or self quarantining, or they were getting, you know, having exposures, maybe even getting the virus, although you would have some leave for that. So I think it's really was just in an, to help to establish, um, some leave for these individuals that they may not otherwise have. So a school closing and a parent who stays home to help their child with remote learning. That's not covered under FMLA, so it's not something you could take a leave for. And so this provided that access to leave so they could have some protected time as well as some benefits. So there's pay associated with that. So the employer's paying out some money to also help keep that individual, you know, having some income. Um, and the same was true with the sick pay that came with part of the FFCRA was, you know, if you had to quarantine because you'd been exposed or you tested positive or, you know, whatever those, those situations were, it allowed that person to have some time that they could take without fear of losing their job, having some protection. And, um, and then also having some pay.

Sarah Montgomery:

Yeah, no, I agree. It's the, the relief bills that would have gone through Congress earlier this year were really designed to address not only the huge health effects of Corona, but also the outsized economic impacts that it's having on families and trying to help keep some form of income for people who have to take leave, especially families with children who are out of school, that the kind of the ongoing result of Corona to get to that when schools are closed, what do you do and how do you care for your children and also provide for your family?

Karen Batson:

Well, we'll dig into the school element in a moment, but I think we need to start with the most recent news. So DOL announced revised regulations just Friday. So September 11th for our listeners, what do these regulations entail?

Sarah Montgomery:

So just to set the stage a little bit. So, you know, as we've been talking about the FFCRA was passed in March, the DOL issued regulations in April in early April, uh, at the end of April, the New York attorney general filed a lawsuit, challenging the applicability and some of the provisions as saying they were overly vague in the DOL regulations and, requested relief in the form of having some of the regulations invalidated which they were by the Southern district of New York in a ruling that was issued in August. So we had regulations some were invalidated, and then most recently the DOL issued regulations, as you said, on September 11th, they will become effective on September 16th when they take effect that made some modifications and then also clarified some of the invalidated provisions so that we have some clarity going forward.

Karen Batson:

With those DOL regulations being in response to kind that New York federal court ruling. Can you give a little background in what that case was about? Maybe a little bit more?

Sarah Montgomery:

You know the New York attorney general really wanted to get some clarity on certain provisions of the DOL regulations. And there were basically four provisions that were invalidated in the court ruling. The first was that an employer has to have work for an employee to take leave from, in order to take FFCRA, leave that provision invalidated by the court ruling and that left open the door to potentially employees that may be furloughed or been temporarily laid off to potentially apply for FFCRA leave. And again, that's something we'll talk about. So I'll talk about what was invalidated and then we'll talk about the DOLs response. The second provision that was invalidated in the initial rules were a, the DOL had a broad definition of health care worker, which would sweep in not only direct frontline healthcare employees and people providing, you know, diagnostic support services, but also anybody who was employed with a healthcare system and also swept in employees like billing personnel, it workers potentially cafeteria workers. So it was a really broad provision. And also under the FFCRA, if you are a healthcare worker, you could be potentially be prevented from taking FFCRA leave. So that was challenged and invalidated through the ruling. Uh, the third provision that was invalidated in the courts ruling was that employers must consent for an employee to take FMLA, eFMLA emergency FMLA or emergency sick leave on an intermittent basis. Again, thinking that it was unfair to ask for employer consent and that that was an o ver-b road reaction from the DOL. And then then finally, the DOL a lso had a requirement that employees must provide documentation before leave begins in order to have the leave approved. And again, the reaction from the court was that's overly broad understanding that with everything going on during C orona, getting paperwork and getting d ocumentation h as been very difficult so that a requirement of having everything in order before l eave could be approved was, u m, particularly burdensome on employees. So in response to those were invalidated by the court and in response, the DOL came back and clarified these four provisions and some things were changed. Some things were affirmed most notably. They did affirm that an employee must be working and must be, have work available to them in order to be eligible to take emergency FMLA or emergency sick leave. If you are not working DOL opined, that is basically, you know, you would look to unemployment insurance to cover those scenarios, not these programs. So that's basically remaining the same and they also, the DOL also affirmed its position that an employer must have a role in an employee's decision to take intermittent leave and have the capacity to consent to what the schedule is. And it was really, you know, the justification there is that it's a workforce planning tool for the employer and employee like to bring some predictability. There are scenarios where it, you know, again, it's like, so that the employer and the employer talk about how to plan leave, not foreclosing the possibility of taking it on an intermittent basis is just saying that it has to be on a consent basis. Um, one thing that we will, you know, there were some examples provided in the DOL opinion about intermittent schedules in school leaves, which is slightly different. It's a little, it's something that's probably easier read and laid out, in example. So we'll be doing that in the absence advisor this month. So I will refer you there because there is more about how the intermittent schedules and school leaves work. Third one was that the DOL amended their definition of healthcare provider. You know, they acknowledged that it was an overly broad definition. So they took the traditional FMLA definition of healthcare provider, and then also added a series of categories to include people like diagnostic technician, lab tech. So people who support and provide direct line patient care, but then also did cut out the over- broad definition of employee that could sweep in people like billing, IT, you know, cashiers and gift shops and things like that. All of those are not considered healthcare providers. So it's more driven by the work you do versus the person or the entity that you work for. And then finally, the DOL did clarify on that paperwork, issue that again, acknowledging that getting everything in before a leave can be approved really is a burden. So instead of saying a prior to standard that everything had to be in prior to a leave being approved, that it's now documentation has to be provided on a, as soon as practical basis, understanding that things may take time. Doctor's offices have a lot going on right now. And that, um, as long as you can provide documentation, when you can, that that should be sufficient to approve leave.

Annie Jantz:

Yeah. And I do think, and Sarah, I'm assuming you would agree that this is helpful, that they clarify those issues. Like even, even though a couple of them, you know, they said, no, we're still going to require that you have work available, which seems completely reasonable. But like the healthcare provider one, I think that was one that there were a lot of questions about when it first came out. So it is helpful that they've clarified that. Um, and even the documentation, like you had mentioned, it is harder to get information today. So having more flexibility, I think that, I think it really has helped that they've come out and clarified some of these pieces.

Sarah Montgomery:

Yes. And I think it is, you know, and as I said, this is the system and, you know, the different branches of government working together and helping, you know, because these, there were a lot of questions and without the court kind of nudge the DOL to clarify things and they did. So it really does help bring clarity to everybody which was sorely needed, especially in the healthcare sector, which has been so hard hit through Corona, understanding what it's, role-based not employer based was a huge clarification.

Annie Jantz:

Right, right. Yeah. I agree.

Karen Batson:

So what did this change for the certain districts in New York?

Sarah Montgomery:

So what was interesting in the DOL clarification on their FAQ on their website when they posed the question to themselves, where do the district court's order vacating, the provisions of the FFCRA apply. And the DOL said basically nationwide, so that, you know, based on the circumstances of the court's order, the department considers the invalidated provisions of the FFCRA vacated nationwide, not just to the parties in the case. So not just applicable in New York, which was interesting, but very, very good that they clarified since, again, from a predictability standpoint, one of the biggest issues that came out of the SDNY ruling was the jurisdictional issues. Is it like, does it apply only to the counties that are governed in the jurisdiction of the Southern district of New York? Or is it beyond that? And so the DOL, on their website has said that it is nationwide applicability, which again, from a clarity standpoint is really helpful to employers and to carriers.

Karen Batson:

Yeah. Oh yeah. So let's move to some further clarity on schools reopening. I think when we were talking about the FCRA in our last podcast episode, it was about kids being at home, all of a sudden, and everyone adapting their schedule. Now we're going into the new school season and schools are reopening. There are a few scenarios, right. So maybe we should talk through kind of each scenario and what that means under the FFCRA. That makes sense.

Annie Jantz:

Yeah, definitely. I think we can do that. And so this is another one that needed clarification because things have changed a little bit since March, right? When I would say the majority of schools, probably not all of them, but the majority of schools were closed and had remote learning going on. And now we're seeing schools reopen and probably everybody's back in school now. And there's a lot of different ways that it's happening, either remote learning or a combination of remote and in person learning or there's options. So some schools are even giving the parents the option to have remote learning or in person. And so, um, the FFCRA came out and clarified this as well on when leave is applicable. Like when can you take leave? And when is it covered? And so for the most part, um, you know, they have three scenarios that they've laid out. One is the first one, which is an option for the parents. So you have a school that says we're going to have in person learning, but we'll also have remote learning. If you're not comfortable sending your kids to school, you know, for whatever reason, if you have your own health condition, they have a health condition or you're just not comfortable. And so you can have your child learn at home, but if there is in person school, um, and it's not even a shared, like partial, remote learning, partial in person, then you're not covered under the FFCRA. If you just elect to have your child home and do remote learning. So if there's the option for, in person and you don't take it, then you're not covered under that leave. So you don't that doesn't apply to you. Um, if the school so like in the second scenario, if this school has remote learning and in person learning, so they have maybe like Monday, Tuesday, Wednesday, you're in person Thursday, Friday, the kids are home and learning remote. Then you are covered for that remote learning those days, not the whole week, but just those days where your child would be home and remote learning, because that is the only option they have from that school. So it's, again, it becomes almost an intermittent type of situation, right. Where you might be taking a couple of days a week because that's really what happens. Um, and then, you know, you also have a situation where a school is maybe in person, but has to go to remote learning for a period of time. Maybe they've had an outbreak. Um, and they close the school down for a couple of weeks during that time when the school is closed and they have remote learning only, or a shared in person and remote learning, you're covered again for that leave. As long as the school's only option is remote learning. Once the school is open again for in-person learning. And if you choose to say, no, I just want to keep remote. I don't want to go back in person then you're not covered. So it really is all about your options. And if there is in person and you choose not to go that route and just want to be remote, then you're not covered. But anytime the school shuts down, they only have remote learning. It's a shared remote. And in person that the school is providing, then you know, that leave would apply to you during the time that you have to be home with your child. So there was, you know, a lot of clarification around that. I think it does help, because again, there were questions about how is that going to work. And, and I think, you know, we're still new into the school year, so we'll see how that plays out for parents. I haven't heard a lot from that at this point. I haven't heard a lot of questions about it.

Karen Batson:

Well there's a bit of learning as you go. I think in many facets of homeschooling right now. Now with the FFCRA in effect until end of the year 12/31, are there any discussions of what support might be available in the new year or we're not there yet?

Annie Jantz:

I don't think we're there. I think we just have to keep watching it and see what happens, how things go and just see what happens.

Karen Batson:

Flexibility is a key word this year.

Annie Jantz:

It really is.

Sarah Montgomery:

We have to see is that he was saying how the school year goes and what the needs are. If everything seems to be working and schools are potentially opening up or remote learning is working, there may not be a need, but if a lot of schools have to shut down again, a lot of kids are sent home. There may be a need to extend or change some of the provisions to create a greater entitlement for some of these parents who are facing endless weeks of having to stay home and try to care for their children.

Karen Batson:

We've covered a lot in this discussion. Where is the best place for our audience to stay up to date with FFCRA, given kind of all the clarity that might be coming through and us being flexible with what comes with the rest of the year.

Sarah Montgomery:

So from our perspective, you know, we are continually adding to our monthly updates. We provide updates on DOL activity, on court cases, on state activities. So I would continue to look to those. And the United States department of labor has a tremendous FAQ section that they add to on a regular basis, every single time they update regulations or they, you know, they're really good about if industry and they're hearing a lot of questions from businesses, industry employers, they will issue clarification. So, um, that link is, will be provided to in our monthly updates. So, you know, employers can, employees can check there as well. It really is a tremendous resource.

Annie Jantz:

Yep. I agree.

Karen Batson:

We'll at that link to the description for our listeners. Well, thank you both for joining. I appreciate your time and going through all this, I'm sure you'll be back.

Annie Jantz:

Yep. Well, thanks for having us.

Sarah Montgomery:

Thank you.

Karen Batson:

To everyone listening, thank you for joining us. We will continue to cover topics that help employers and their employees navigate through this new environment. So be sure to subscribe to Lincoln Absence Advisor on Apple, Spotify, or wherever you get your podcasts

Disclosures:

The information contained in this podcast is for general use and is not a substitute for the advice of an attorney or your human resource professional. Lincoln Financial Group is the marketing name for Lincoln national corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations.