By: Blake Brookshire and Barbara Wells
Congress swiftly enacted the Families First Coronavirus Response Act (“Families First Act”). With this law, employers previously too small for the FMLA to cover them are now left to figure out the new requirements on them. Employers with Family and Medical Leave (“FMLA policies”) in place are not better off as they scramble to make sense of the overlay of the Emergency Family and Medical Leave Act or the Emergency Paid Sick Leave Act provisions of the Families First Act on their existing policies.
No Real DOL Guidance
The Department of Labor (“DOL”) provided regulations and guidance for the FMLA. Courts have helped define the contours of the FMLA. The DOL has not had time to promulgate regulations or formal guidance for the Families First Act. The DOL has been adding to a list of “Frequently Asked Questions” and providing guidance in that fashion. It is difficult to anticipate when DOL will add to this list or which questions it will answer. The DOL recently announced it will have a webinar for employees in the Southeast Region on Monday, May 18, 2020. It will host an employers’ webinar on Wednesday, May 20, 2020. DOL is not leaving State and Local Government out; they will have a webinar on Friday, May 22, 2020. For more information on that see this page: https://www.dol.gov/newsroom/releases/whd/whd20200515
No Sample DOL Forms
We always recommend that employers use the DOL’s FMLA forms. It is simply the best way to comply with the law. Yet, the DOL has not issued sample forms for the provisions of the Families First Act, employers are left wondering what they can ask and what they should ask. Some of the FAQ from the DOL make it clear that the DOL does not want employers requiring medical certifications for leave relating to COVID-19. There are obvious policy reasons for this position, but it does mean that employers modeling documents on FMLA forms may wander into trouble. Employers must perform the difficult balancing act of requesting sufficient information to document the employee’s need for leave but not seeking too much or the wrong kinds of information. Additionally, as with all health information, the employer must properly safeguard and store the sensitive information regarding employee medical conditions.
Workplace Exposure Notices?
Employers also need to be considering how to provide information to other employees of potential workplace exposure to COVID-19. This communication is delicate. It must not reveal the identity of the employee with the positive diagnosis. However, it also must provide information to potentially exposed coworkers.
We Can Help.
Employers should seek advice from experienced attorneys when creating these forms and policies in order to minimize potential liability. If you have questions about what to do with your business or company during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for one of our employment lawyers: Barbara Wells, Christopher Weller, Brooke Lawson, Carla Gilmore, Blake Brookshire, Mai Lan Isler, or Faith Twiggs. Or, visit our web page at http://www.chlaw.com for contact info and the latest alerts.
This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your particular situation.
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