Category Archives: COVID-19

WISCONSIN SUPREME COURT STRIKES DOWN STATEWIDE MASK MANDATE

By: Samantha J. Wood and Sally A. Piefer

On Wednesday, the Wisconsin Supreme Court struck down Wisconsin’s statewide mask mandate, holding that Governor Evers exceeded his legal authority by issuing multiple emergency orders under Wis. Stat. § 323.10.   The court emphasized that the question was “not whether the Governor acted wisely; it [was] whether he acted lawfully.”  Section 323.10 specifies that no state of emergency may last longer than 60 days unless “the state of emergency is extended by joint resolution of the legislature.”  Absent legislative approval, the Governor is precluded from proclaiming repeated states of emergency.  Because Governor Evers extended the orders declaring a state of emergency on several occasions without legislative approval, his extensions were and are invalid.

Although Wisconsin’s statewide mask mandate has been struck down by virtue of the Supreme Court’s decision, employers must keep several other laws in mind in determining their next steps:

  1. Several municipalities have issued their own mask mandates, including Dane County, Milwaukee County, the City of Milwaukee, Wauwatosa and various other townships and villages. These mandates are enforceable if enacted by the municipality’s governing body. Employers should check with their local municipality and county before eliminating a mask requirement.
  1. Employers still maintain responsibilities under OSHA’s “General Duty” clause. OSHA’s General Duty clause requires an employer to furnish to its employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Employers can be cited for a violation of the General Duty clause if a recognized hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard. OSHA prepared guidance in March 2021 that encourages employers to require face coverings. That guidance can be found here.
  1. Employees may be eligible to receive worker’s compensation benefits as a result of contracting COVID-19 in the workplace if the employee can establish that the employee contracted the virus while performing services growing out of and incidental to that employment.

In determining whether to lift an employment mask requirement or policy, employers should consider the above-referenced legal considerations, as well as analyze the risks in their workplace, other sanitization or safety procedures in place, and whether, if a mask requirement will remain in place, the employer will consistently enforce a mask policy and issue corrective action to employees who violate the policy.

What You Need to Know About the ARPA

By: Sally A. Piefer and Samantha J. Wood

Last week, the American Rescue Plan Act of 2021 (ARPA) was signed into law.  This is a large and detailed piece of legislation that has several components that directly affect employers.

FFCRA Leave Expansion/Extension

Like the prior COVID-19 stimulus/relief bill that was discussed here, the ARPA allows employers covered by the FFCRA to continue to voluntarily provide paid FFCRA leave and receive the tax credit associated with such leave through September 30, 2021.

If you recall, the leave provisions of the FFCRA covered all employers with fewer than 500 employees, and provided two buckets of leave:

  • Emergency FMLA (EFMLA), which provided paid leave for employees who were unable to work (or telework) because they need leave to care for a child (under age 18) if the child’s elementary or secondary school or place of care had been closed or if the child care provider was unavailable because of a public health emergency.
  • Emergency Paid Sick Leave (EPSL), which provided limited paid sick leave to employees who were unable to work (or telework) because of leave needed for any of the following reasons:
    1. The employee is subject to a quarantine or isolation related to COVID-19;
    2. The employee had been advised by a health care provider to self-quarantine due to COVID-19;
    3. The employee was experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    4. The employee was caring for an individual subject to a state, federal or local quarantine or isolation related to COVID-19;
    5. The employee was caring for their child if the child’s school or place of care had been closed, or the child care provider was unavailable due to COVID-19 precautions; or
    6. The employee was experiencing any other substantially similar conditions specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.

To benefit employers, the FFCRA provided a refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer – subject to the FFCRA’s maximum payments.

In December 2020, the COVID-19 stimulus/relief bill was passed to allow employers to voluntarily continue granting employees EFMLA and any remaining EPSL, and receive the associated tax credit through March 31, 2021.

Now, the ARAP extends and expands the leave and associated tax credits for voluntarily providing paid leave through September 30, 2021.  The notable expansions are as follows:

  1. While the prior stimulus bill only allowed employees to use the remainder of their EPSL, the ARPA provides that employers may grant employees (and receive the associated tax credit for providing) a new ten-day bank of EPSL beginning on April 1, 2021.
  2. While the FFCRA and the prior stimulus bill allowed employees to take EPSL for six reasons (as delineated above), the ARPA allows EPSL to be taken for two additional reasons: (a) to obtain a COVID-19 vaccine; and (b) to recover from any adverse reactions to the vaccine.
  3. While the EFMLA was previously only available to employees who were unable to work or telework due to a COVID-related closure of a child’s school or childcare, the ARPA now allows EFMLA to be taken for all of the qualifying uses of the EPSL.
  4. While the FFCRA originally provided that the first two weeks of EFMLA were unpaid, ARPA has deleted that unpaid two-week provision and will allow the entire twelve weeks of EFMLA to be paid.
  5. The ARPA provides that employers may not claim the tax credits for providing EPSL or EFMLA if it only provides the leave to highly compensated employees, full-time employees, or employees with a certain tenure.

Mandatory Subsidies for COBRA Premiums

The ARPA also requires employers to pay for up to 6 months of the COBRA premiums at 100% of the monthly premium. Specifically, this subsidy applies to any employee who was involuntarily terminated (other than for gross misconduct) or whose hours were reduced and whose COBRA period includes any period of time between April 1, 2021 and September 30, 2021. Employees who voluntarily leave employment are not eligible for the subsidy.

Former employees who did not originally elect COBRA coverage are also entitled to the assistance and a new special election period. The subsidy will cover not only group health coverage, but also group dental and vision coverage, and will only apply to premiums between April 1, 2021 and September 30, 2021.

The ARPA also permits employers to decide whether they will allow an eligible former employee to switch from the coverage they had in effect at the time of the involuntary termination to a lower cost group health plan option. Eligible individuals are prohibited from opting into a higher cost group plan option.

Employers will be allowed to treat the subsidy as a credit against their share of Medicare taxes. If the credit exceeds the amount of tax owed in any quarter, the excess will be refundable.

Employers are required to provide notice of the right to elect fully subsidized COBRA to all eligible individuals. The notice contains several specific pieces of information. The Department of Labor (DOL) has been charged with preparing 2 model notices, which should contain all of the required language. The model notices are supposed to be available by April 10, 2021. In addition, employers will be obligated to provide written advance notice when the subsidy is scheduled to expire.

While we wait for the DOL forms, you should begin to identify which COBRA beneficiaries became eligible for COBRA due to an involuntary termination (other than misconduct) or reduction in hours during the last 18 months (29 months for individuals eligible for COBRA due to a disability) to determine who will be eligible for the new notices. Employers should also contact their group health plans to determine whether the employer will be responsible for issuing the new COBRA notices or whether the plan will assume those responsibilities. Now may also be a good time to review any contracts you have which transfer the obligation to provide COBRA notices so that your business is fully protected in the unfortunate event that a notice is not timely provided.

Extended Federal Unemployment Insurance Assistance

The ARPA also extends several unemployment insurance programs and initiatives through the week ending September 6, 2021, including:

  1. The Pandemic Unemployment Assistance Program, which provides benefits to independent contractors, business owners, self-employed workers, and similar workers who do not qualify for regular state unemployment benefits;
  2. Most states cap unemployment at 26 weeks. The CARES Act added an additional 13 weeks and the December 2020 Consolidated Appropriations Act (CAA) added an additional 24 weeks. ARPA now extends benefits to 53 weeks, which means that an eligible person can receive up to 79 weeks of unemployment benefits – the original 26 weeks plus 53 weeks of federal extension.

The program which provides an additional $300 per week in benefits for each person receiving unemployment benefits, in addition to what s/he is receiving through regular state unemployment benefits.

CDC Issues Interim Guidance on Vaccinations

By: Samantha J. Wood

Last week the Centers for Disease Control and Prevention (CDC) issued Interim Public Health Recommendations for Fully Vaccinated People.  This guidance can be found here.

The CDC stated that it considers an individual to be “fully vaccinated” two weeks after they have either received the second dose of the two-dose series of the Pfizer or Moderna vaccine or two weeks after they have received the single dose Johnson and Johnson vaccine.

After an individual is fully vaccinated, the CDC states that the individual:

  • Can visit with other fully vaccinated individuals indoors and in private settings without wearing masks or physical distancing;
  • Can visit with unvaccinated individuals from a single household at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
  • Need not quarantine and test after a known exposure so long as the individual remains asymptomatic.

Despite this guidance, however, the CDC continues to recommend that employers maintain routine workplace screening programs and preventative measures, including masking, physical distancing, gathering restrictions, and sanitation and cleaning procedures. Additionally, for employees in high-density workplaces, such as meat processing and manufacturing plants, the CDC continues to recommend that vaccinated individuals are tested after an exposure to COVID-19.

This guidance is consistent with that issued by the Occupational Safety and Health Administration (OSHA) in January 2021, wherein OSHA encouraged employers to continue to follow protective measures regardless of whether employees are vaccinated.

Employers should also be cautious in modifying or discontinuing preventative measures, as it could lead to safety complaints, could spark discussions about who is/is not vaccinated and the reasons behind that decision, and discrimination or disparate impact concerns for those who are not being vaccinated due to religious or disability reasons.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about this guidance or any other labor or employment issue involving your business, please contact us at any time.

FFCRA LEAVE TO EXPIRE

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By: Sally A. Piefer

December 22, 2020

Last evening the legislature approved a new COVID-19 stimulus/relief bill. The bill is expected to be signed by the President soon.

Many employers have wondered whether the legislature would extend FFCRA leave, specifically the emergency paid sick leave (EPSL) and emergency family and medical leave (EFMLA) provisions as the new year approaches and as COVID-19 cases continue to rise through much of the United States.

As you will recall, the leave provisions of the FFCRA covered all employers with fewer than 500 employees, and provided two buckets of leave:

  • EFMLA which provided paid leave for employees who are unable to work (or telework) because they need leave to care for a child (under age 18) if the child’s elementary or secondary school or place of care has been closed or if the child care provider is unavailable because of a public health emergency.
  • Emergency Paid Sick Leave provided limited paid sick leave to employees who are unable to work (or telework) because of leave needed for any of the following reasons:
        1. The employee is subject to a quarantine or isolation related to COVID-19;
        2. The employee has been advised by a health care provider to self-quarantine due to COVID-19;
        3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
        4. The employee is caring for an individual subject to a state, federal or local quarantine or isolation related to COVID-19;
        5. The employee is caring for their child if the child’s school or place of care has been closed, or the child care provider is unavailable due to COVID-19 precautions; or
        6. The employee is experiencing any other substantially similar conditions specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.

To benefit employers, the FFCRA provided a refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer – subject to the FFCRA’s maximum payments.

Tax Credits Provided for Voluntary Extension of Leave

Although the legislature did not officially extend the leave provisions – meaning the mandatory leave expires on December 31, 2020, employers covered by the FFCRA can voluntarily continue to provide the leave through March 31, 2021 and continue to receive the tax credit. The extension of the tax credit only applies to private employers – no provisions have extended the tax credit to public employers.

The extension of the tax credit also does not mean that an employee who already exhausted their EPSL will get another bank of EPSL. However, as drafted, it would appear that if an employer’s FMLA would restart before March 31, 2021, that employer would have to provide another new bank of EFMLA through March 31, 2021. Hopefully the DOL will soon issue guidance on how the new legislation affects EFMLA.

Employer Next Steps

Employers covered by the FFCRA will need to decide whether they will continue to provide EPSL and EFMLA through March 31, 2021. If you do decide to do so, it would make sense to let your employees know about the leave, and that the extension of leave will expire on March 31, 2021.

We will continue to monitor and provide further updates on COVID-19 developments. If you have questions, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.

 

The EEOC Releases Updated Guidance on Mandatory COVID-19 Vaccinations and Related Employment Laws

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By: Oyvind Wistrom

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released updated guidance on the responsibilities and rights of employers and employees related to the COVID-19 vaccine, including mandatory employer vaccination programs.

The publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” is available here.  The new EEOC guidance provides information to employers and employees about how mandatory COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

The EEOC guidance confirms that employers are allowed to implement and enforce a mandatory COVID-19 vaccination policy for employees, with certain exceptions and caveats.  Some of the key takeaways from the EEOC include the following:

  • Employers are allowed to require employees to receive an FDA approved COVID-19 vaccine (once it becomes available) as a condition of employment or continued employment.
  • Employers must attempt to accommodate employees who, due to a medical disability under the ADA or sincerely-held religious beliefs under Title VII, decline or refuse to receive the vaccine.
  • If an employer determines, based on objective evidence, that the presence of an unvaccinated employee (i.e., employee who declines or refuses to be vaccinated because of a disability or sincerely-held religious reasons), presents a direct threat to the health and safety of other persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace.
  • When an employer seeks to exclude an unvaccinated employee from the workplace due to a direct threat presented by his or her presence in the workplace, the employer may not automatically terminate the employee. Rather, the employer must attempt to accommodate the employee if he or she cannot receive the vaccine due to a disability or a sincerely held religious belief. Employers must assess four factors in making this determination: 1) the duration of the risk presented by the unvaccinated employee; 2) the nature and severity of the potential harm presented by the unvaccinated employee’s presence in the workplace; 3) the likelihood that harm will occur; and 4) how imminent that harm is to others in the workplace.
  • In determining whether a reasonable accommodation exists under the ADA, the employer should consider the feasibility of possible reasonable accommodations such as working remotely, transferring the employee to another worksite where he or she can work independently, or possibly placing the employee on a leave of absence. In so doing, the employer should consider the employee’s leave rights under the FFCRA (set to expire on December 31, 2020), both state and federal FMLA, as well as under general employment policies.
  • The administration of a COVID-19 vaccine by an employer (or by a third-party with which the employer has contracted to provide vaccinations) is not a “medical examination” under the ADA because the employer is not seeking information about the employee’s current health status. Requiring a vaccination also does not implicate the Genetic Information Non-Discrimination Act (GINA) because an employee’s genetic information is not being used to make employment decisions and no genetic information is being sought.
  • Although the administration of the vaccine is not a “medical examination” under the ADA, the guidance notes that if a health care provider asks certain pre-vaccination screening questions to ensure there is no medical reason for a person not to receive the vaccine, these questions may constitute a “medical examination” under the ADA because they may solicit information about an employee’s disability. Therefore, any pre-vaccination screening questions that are disability-related must be job-related and consistent with business necessity, and responses should be maintained as confidential.
  • Employers are also permitted to require employees to provide proof that they received a COVID-19 vaccine. Such an inquiry is not a medical examination under the ADA because it is not likely to elicit information about an employee’s disability status.  However, an employer should be careful to ensure that employees do not disclose any medical information beyond proof of the vaccination and they should avoid asking why the employee did not receive the vaccination.

With the first round of COVID-19 vaccines finally becoming available, and with several other possible vaccines on the horizon, employers need to carefully consider whether the implementation of a mandatory vaccination program is the right business decision, or whether the spread of the virus can be ameliorated through other methods or precautions.  The nature of the business, and the amount of interaction that is required between employees, customers, clients, and vendors should help guide the decision-making process of whether a mandatory vaccination program is necessary or appropriate.

If you have any questions about these guidelines or any other matter, please contact  Oyvind Wistrom or your Lindner & Marsack attorney at (414) 273-3910 to seek counsel.

Workers’ Compensation in a Post COVID World

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Lindner & Marsack, as the Wisconsin firm member of the National Workers Compensation Defense Network, would like to invite you to this year’s NWCDN virtual annual conference. This year’s conference is “Workers’ Compensation in a Post COVID World.”  The day-long program will focus on both COVID and COVID inspired topics with presenters including a Director from the CDC, the Senior Contributing Editor for the AMA Guides, leaders of industry, the Plaintiffs’ bar and the judiciary from all over the country.

 

This free daylong seminar features not only the main stage speakers, but a second stage that includes panel discussions comprised of law firms from all over the country providing both COVID and non COVID state specific updates.  Click the registration link below and we look forward to “seeing” you on November 12, 2020.

 

Thursday, November 12, 2020,

COMPLIMENTARY VIRTUAL SEMINAR

from 10:00 a.m. to 6:00 p.m. EST

 

Click here to Register Now!

Court Extends Temporary Restraining Order Blocking Wisconsin Governor From Releasing Names of Companies with Positive COVID Cases

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By: Sally A. Piefer

Last week we reported that Governor Evers planned to release the names of more than 1,000 businesses who have had 2 or more employees test positive for COVID-19. The Wisconsin Manufacturers & Commerce (WMC) reported that it had been regularly urging the Governor to keep this information confidential. WMC claimed that a letter was sent to the Governor in July 2020 describing the legal implications of releasing the names of businesses who had COVID-positive cases among its employee ranks. WMC says that it reached out again to the Governor’s office, but received no response before it alerted its membership of the impending information release. On October 1, the WMC, along with two local chambers of commerce, filed suit and obtained a temporary restraining order (TRO) blocking the release of this information.

This morning a court hearing was conducted by Zoom. Based on the arguments of counsel, the Court decided to extend the TRO until the parties have had an opportunity to fully brief the issues and for the Court to make an informed decision. The next hearing is scheduled for November 30, 2020 at 2:00 p.m. The parties, along with the Milwaukee Journal Sentinel, who intervened in the case, will be filing a variety of briefs between October 9th and November 6th.

We will continue to provide updated information as it becomes available. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.

COURT ISSUES TEMPORARY RESTRAINING ORDER PREVENTING WISCONSIN GOVERNOR FROM RELEASING NAMES OF BUSINESSES EXPERIENCING COVID CASES

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By Sally Piefer

Yesterday we reported that, despite repeated requests from the Wisconsin Manufacturers & Commerce (WMC), Wisconsin’s Governor Evers was set to release to the public the names of Wisconsin businesses who have had at least 2 employees test positive for COVID. The release of business names was scheduled for Friday, October 2, 2020.

Yesterday, the WMC, along with two other local Chambers of Commerce, filed a lawsuit in Waukesha County Court on the issue. The WMC and the Chambers also sought a temporary restraining order (TRO), asking the Court to immediately prevent the Governor’s office from taking the proposed action.

The Waukesha County judge granted the TRO request late on Thursday afternoon. The Order reads:

Upon the motion of Plaintiffs Wisconsin Manufacturers and Commerce, Muskego Area Chamber of Commerce, and New Berlin Chamber of Commerce and Visitors Bureau, pursuant to Wis. Stat. § 813.025 and for good cause shown;

It is hereby Ordered that Defendants Tony Evers, Andrea Palm, and Joel Brennan, and their officers, agents, and employees (collectively referred to as “Defendants”), are temporarily restrained from releasing any information relating to businesses whose employees have tested positive for COVID-19 or who contract tracing has shown close connections.

This Order shall remain in effect for 5 days unless extended after notice and hearing.

The Court will likely be scheduling a hearing on the request for a preliminary injunction either next week or the week after. Typically, TRO’s can be in effect for up to 5 days, unless extended by agreement of the parties. We will continue to keep you abreast of further developments on this issue. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.

Wisconsin Manufacturers & Commerce Reports Wisconsin Governor to Release Names of Companies with Positive COVID Cases

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By: Sally A. Piefer

Yesterday afternoon, the Wisconsin Manufacturers & Commerce (WMC) notified its members that Governor Evers plans to release the names of more than 1,000 businesses who have had 2 or more employees test positive for COVID-19. The release is reportedly scheduled to occur tomorrow, Friday, October 2, 2020.

During the summer, Governor Evers said publicly that his administration would not release business names where employees tested positive for COVID because it was “information that’s not public.” In addition, during a September press event, Governor Evers is reported to have acknowledged that releasing the information could pose privacy issues.

The WMC has been regularly urging the Governor to keep this information confidential. WMC retained legal counsel who wrote a letter to the Governor in July 2020 describing the legal implications of releasing the names of businesses who had COVID-positive cases among its employee ranks. WMC says that it reached out again to the Governor’s office yesterday, but received no response before it alerted its membership of the impending information release.

We will continue to provide updated information as it becomes available.

If you have questions, please contact Sally Piefer or your normal Lindner & Marsack attorney.

DOL PROVIDES CLARIFICATION ON FFCRA PAID LEAVE PROVISIONS

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By: Samantha J. Wood and Sally Piefer

Last month, the federal district court for the Southern District of New York struck down several regulations issued by the Department of Labor (DOL) regarding the Families First Coronavirus Response Act (FFCRA) and its two major provisions, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLA). More information regarding this decision can be found here. Since this decision was issued, it remained unclear how the decision would impact employers outside of the Southern District of New York.

Thankfully, last week the DOL provided employers with some guidance by revising its FFCRA regulations and clarifying the following:

Work Availability

The FFCRA provides paid leave to employees who are “unable to work (or telework)” because of a need to care for a child. The DOL’s earlier regulations indicated that employees were not entitled to the paid leave if the employer “does not have work” for the employee to perform.

The DOL has reaffirmed that an employee may take FFCRA leave only to the extent that a qualifying reason for such leave is the “but-for” cause of his or her inability to work. In other words, an employee is only entitled to FFCRA leave when the employer has work available for the employee to perform but s/he cannot perform it “because of” a qualifying reason.  If there is no work for an individual to perform due to circumstances other than a qualifying reason for leave, such as a temporary or permanent worksite closure, the employee is not eligible for FFCRA leave. However, employers may not make work unavailable in an effort to deny FFCRA leave; indeed, altering an employee’s schedule in an adverse manner because the employee requests or takes FFCRA leave would likely constitute impermissible retaliation.

Intermittent Leave

The DOL has also reaffirmed its earlier regulations regarding intermittent leave.  Specifically, employees are permitted to take intermittent leave under the EFMLA or the EPSLA only if the employer consents to the use of such intermittent leave.

Health Care Provider Exception

In an effort to prevent disruptions to the health care system’s capacity to respond to COVID-19, the FFCRA also allows employers to exclude from coverage “health care providers” or “emergency responders.”

The DOL’s earlier regulations broadly defined a “health care provider” to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity” including “any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.” In addition, the regulations further expanded the definition to include the following: (1) any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility; (2) anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; and (3) any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.

In light of the federal district court’s challenge to the broad definition, the DOL has narrowed the definition of “health care provider,” to include (1) employees who meet the definition of “health care provider” under the Family and Medical Leave Act regulations (physicians and others who make medical diagnoses); or (2) those who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provisions of patient care, which, if not provided, would adversely impact patient care. Employers who originally exempted employees under the broad health care provider definition will need to re-evaluate whether they can continue to exclude their employees from coverage.

Advance Notice of Need for Leave

The FFCRA permits employers to require employees to follow reasonable notice procedures to receive FFCRA leave. The DOL’s earlier regulations provided that “prior to” taking leave, the employee must provide the employer the reason for leave, the duration of the leave, and if applicable the authorized person who ordered isolation or quarantine.

The DOL has revised this requirement to require employees taking FFCRA leave to provide their employers with notice of leave as soon as practicable, when the necessity for such leave is foreseeable. While this will generally mean that employees are required to provide notice before taking leave, there may be some instances where leave is not foreseeable and prior notice is not practicable.

Additionally, the DOL clarified that the documentation required from the employee for FFCRA leave also need not be given “prior to” taking FFCRA leave, but is only required as soon as practicable, which in most cases will be when the employee provides notice of the need for leave.

Conclusion

In light of the DOL’s revised regulations, employers must modify their practices to ensure compliance with the narrower health care provider exception and the more flexible notice and documentation requirements.

If you have any questions about these new regulations, please contact your Lindner & Marsack attorney or the Firm at (414) 273-3910 to seek counsel.