Employment Law

The Employer’s Requirements for FMLA and FFCRA Leave

Construction firms across the country are in a challenging position. Jobsites are closing, and many communities have been impacted by the spread of the coronavirus disease (COVID-19). On top of all of these challenges, contractors need to stay informed of the latest developments and regulations that impact their business. For example, effective on April 1, 2020, the Families First Coronavirus Response Act (FFCRA) requires employers to provide their workforce with paid sick leave for COVID-19-related reasons. This new legislation is being referred to as an extension of the family and medical leave requirements, but the new regulations are significantly different from the requirements of the Family and Medical Leave Act (FMLA).

In this article, a COVID-19 construction attorney will discuss both forms of medical leave, how they differ, and a few ways employers can make sure they are compliant with either form of leave. This article is not a comprehensive guideline for FMLA or FFCRA requirements, but the information below can help you follow medical leave requirements in general. For more information on the specific requirements for FMLA or FFCRA, consult an Asheville construction lawyer.

The Differences Between FMLA and FFCRA Leave

As we stated above, the requirements for the traditional FMLA leave process and the newly instituted FFCRA leave are significantly different. First off, each type of medical leave has its own eligibility rights for employees and qualifying reasons for taking leave. Some of the key differences between each of the forms of leave include:

Although FFCRA is considered an extension of family and medical leave, FMLA leave does not require employers to compensate the employee when they take leave. For FFCRA leave, there are specific paid leave entitlements for employees, including for homeschooling their child (if their school was impacted by COVID-19).
For FFCRA leave, the qualified reason for leave is directly related to the COVID-19 pandemic. For FMLA leave, there are a variety of qualified reasons, including: bonding with a recently born son or daughter, military-related reasons, caring for a direct family member with a serious medical condition, or seeking treatment for a serious medical condition.
To qualify for FMLA leave, the employee must have worked at least 1,250 hours over the last year to be eligible. To qualify for FFCRA leave, the employee must have worked at the company for at least 30 days.

The Similarities of FMLA and FFCRA

Although there are clear differences between these forms of leave, there are some similarities, including:

Both leave policies allow employees approved time away from work.
They require the employer to comply with the requirements set forth by the Wage and Hour Division (WHD). .
Whether or not an employee is qualified for either type of leave is directly related to the size of the company. Private companies with 50 or more employees are required to comply with FMLA requirements, whereas, companies with fewer than 500 employees are eligible for FFCRA leave.
Both forms of leave require the employer to allow the employee to return to the same position they occupied before their leave. Both policies prohibit any form of discrimination or retaliation against an employee for exercising their right to take leave.

Employer Requirements for Medical Leave

Employer requirements vary depending on the type of leave an employee is taking; however, there are some general tasks employers should perform for either type of leave, including:

Post the Poster Somewhere Clearly Visible

Similar to required OSHA posters, a notice of all relevant FMLA information must be posted in a visible area at the jobsite. With the newly published FFCRA requirements, this poster should be posted next to the FMLA poster. When employers fail to have required posters posted in a clearly visible area, they risk facing steep civil penalties.

Update Your Company Handbook

All provisions related to FMLA leave need to be consistently applied to relevant company records, including employee handbooks. With the newly added requirements of the FFCRA, company handbooks should also address these provisions. In fact, we encourage employers to consider updating their handbook to reflect any recently amended company policies, including policies related to absenteeism, telework, or travel restrictions. Consult an Asheville contractor lawyer to learn more about updating company policies to align with the newest regulation changes.

Communicate with Employees

Employers are also responsible for training their workforce and educating them on family and medical leave policies. Beyond training, this includes notifying the employee of their eligibility rights when they request leave. For example, if an employee states that they will need time-off to care for a family member with a serious medical condition, the employer should address their FMLA options. For FFCRA requirements, if an employee’s spouse is requested by a healthcare provider to self-quarantine for a COVID-19-related illness, the employer should inform them of their FFCRA rights.

Understand the Approval Process

Although FMLA and FFCRA contain dramatically different request and approval procedures, employers need to be aware of the approval process for each form of leave.

FMLA leave generally requires the employee to provide a medical certification from a healthcare provider informing the employer of their need for leave. Generally, the timeline for determining if an employee can take FMLA leave is very short (five days or less).
Most of FFCRA’s qualified reasons for leave are for either a federal, state, or local quarantine order or if an employee is advised by a healthcare provider to self-quarantine for a COVID-19 related reason. Although medical certifications are common for the FMLA approval process, public health organizations like the Centers for Disease Control and Prevention (CDC) are advising employers forgo requiring a medical certification for employees self-isolating. This is, until they have at least been accurately diagnosed with COVID-19-related symptoms.

Avoiding Retaliation Claims

Both FMLA and FFCRA forms of leave do require an employer to not “discharge, discipline, or otherwise discriminate against” an employee that takes leave. In other words, an employee under either form of leave has the right to file a retaliation claim through WHD if they experience an adverse employment action following their leave.

For this reason, employers must make sure to accommodate their employees when they return to work, including providing them with similar pay, responsibilities, and scheduling. However, employers can require their employees to seek medical clearance before returning to work. To learn more about return to work requirements for either FMLA or FFCRA leave, consult a Raleigh contractor attorney.

Consult an Attorney

Eligibility requirements for both FMLA leave and the newly instituted FFCRA leave process can be complicated. Because the nature of granting leave is often determined on a case-by-case basis, we encourage employers to consult a Raleigh construction law firm for any of their leave-related legal questions. We can help ensure that your business is in compliance with federal laws governed by the WHD.

At Cotney Attorneys & Consultants, a construction attorney in Wilmington, NC, can help navigate you through the red tape of any medical leave issue, including the newly instituted FFCRA regulations. To learn more about paid and unpaid medical leave requirements regulated by the WHD, consult a COVID-19 construction lawyer.

If you would like to speak with a contractor attorney in Wilmington, NC, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.