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As local school districts evaluate whether and in what format to open schools this fall, parents and parents’ employers ponder how to juggle childcare demands and work. The Families First Coronavirus Response Act (FFCRA) created leave options for employees needed for childcare, but many employees have already used some or all of that leave. Here are issues to consider in planning for the upcoming school year.
For employers with fewer than 500 employees, the FFCRA expands FMLA leave to include the leave to care for a child whose school or childcare is closed for COVID-19 related reasons. In conjunction with leave under the Emergency Paid Sick Leave Act, this leave is partially paid (and reimbursable to the employer through payroll tax credits). The leave is capped at 12 weeks – inclusive of all forms of FMLA leave.
Many schools districts are considering a “hybrid” opening in which students will be allowed to attend physical school on a reduced basis (such as 2-3 days a week) and spend the remainder of the school week in virtual learning from home. Under these circumstances, an employee may request to take EFMLA only during those times when the child is in virtual learning. An employer may agree to this intermittent leave, but intermittent leave is not required.
If parents have an option, the schools would not be closed for purposes of the EFMLA.
EMFLA leave is only available to employees who cannot work (including telework) because schools are closed. An employee can be required to perform telework while schools are closed. The feasibility of telework, however, may depend on the need for the employee to participate in the child’s virtual learning – which may turn on the child’s age and other circumstances. An employer and employee may agree on a reduced schedule in which the employee works part of the day and takes EFMLA while assisting with childcare and learning.
The Department of Labor has stated that an employee only need be paid for the time spent performing actual work. If an employee teleworks in the morning, assists with schoolwork in the afternoon and works again in the evening, they would only be paid for the actual work time (morning and evening).
Although there is no definitive guidance from the Department of Labor, EFMLA is intended to be leave for when school or childcare is closed. Therefore, the parent (at least in theory) could care for the child during the day and still cover their shift. EFMLA would therefore not be applicable. However, if childcare during the shift is closed because of COVID, EFMLA might be available during that time.
Under IRS regulations, if the child is 15 or older, you can require substantiation that the employee’s supervision is necessary.
The employee would still be entitled to use EFMLA to care for the younger child. If the schools are open but the child’s class is required to quarantine, is EFMLA available? Yes. The school would be considered closed for the class even if others can still attend.
The employee is only entitled to total of 12 weeks of EFMLA. If they have already used some of their EFMLA leave, that leave reduces the balance which they can use for the upcoming school year. You can, of course, provide additional leave at your option, but the additional leave, if paid, will not be eligible for the tax credit.
You should request a statement from the employee which includes the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
No. You cannot discriminate against employees because they will need to use EFMLA.
The National Labor Relations Board on July 21, 2020, issued a decision protecting an employer’s rights to deal with profane attacks at work, profane attacks about the company or manager on social media and profane and racist comments when picketing.
The case of General Motors, LLC involved a union committee person, Charles Robinson. Robinson had a heated exchange with the plant manager regarding overtime pay when employees were away on cross training. Robinson yelled at the plant manager, saying:
“I don’t give a f**** about your cross training,” “we’re not going to do any f****n’ cross-training if you’re going to be acting that way,” and the manager could “shove [the training] up [his] f****** a**.”
The employer graciously suspended Robinson for three days.
Two weeks later, Robinson attended a meeting with company managers regarding subcontracting issues. One of the managers asked Robinson to lower his voice, he was speaking too loudly. Robinson lowered his voice and mockingly said to everyone at the meeting about the manager:
“Yes, Master, Your Master Anthony,” “Yes, sir, Master Anthony,” “Is that what you want me to do, Master Anthony?”
Robinson then said to the manager that the manager wanted Robinson to be a “good Black man.” The company suspended Robinson for two weeks.
Several months later at another meeting with the union shop committee and management representatives, Robinson kept repeating the same questions that management representatives had addressed. In response to one of the management representatives who asked Robinson to stop repeating his questions, Robinson said he would “mess [the manager] up.” Then, during the meeting, Robinson began to play from his cell phone loud music with vulgar language and sexually explicit lyrics. Robinson did this for almost a half an hour. Robinson turned off the “music” when managers left the room, but when they returned, Robinson turned it back on. This resulted in a suspension of Robinson for thirty days.
Of course, from our perspective, the vulgar language used regarding overtime would alone have been a basis for termination. Robinson filed an unfair labor practice charge, alleging that his three suspensions were retaliatory for expressing his Section 7 rights, wages, hours and conditions of employment. An Administrative Law Judge ruled that Robinson’s vulgar language directed toward the plant manager was not protected but his “Yes, Master” continuing comments were protected, as were his comment to “mess up” a manager and playing the sexually explicit and racially charged music during a meeting when he had been asked not to. According to the Board in General Motors, prior Board decisions addressing this behavior:
“… have conflicted alarmingly with employers’ obligations under federal, state, and local anti-discrimination laws. We believe that, by using [current] standards to penalize employers for declining to tolerate abusive and potentially illegal conduct in the workplace, the Board has strayed from its statutory mission.”
Prior cases had one standard for workplace misconduct, another for social media comments, and yet another for picket-line misconduct. The Board stated that rather than three confusing standards applying to employee misconduct, Robinson’s behavior should receive the same analysis as other disciplinary or discharge decisions in the context of employee Section 7 activity: The NLRB must prove that (1) the employee engaged in protected activity, (2) the employer knew of the activity and (3) the employer’s actions against the employee were because of the employee’s protected activity. Should the Board prove this, the employer must show that it would have taken the adverse action toward the employee regardless of the employee’s Section 7 activity. The Board stated that:
“We read nothing in the Act as intending any protection for abusive conduct from nondiscriminatory discipline, and, accordingly, we will not continue the misconception that abusive conduct must necessarily be tolerated for Section 7 rights to be meaningful.”
The Board added that:
“American workers engage in these [protected] activities every day without resorting to abuse, and nothing in the text of Section 7 suggests that abusive conduct is an inherent part of the activities that Section 7 protects.”
The Board stated the reality that employers try to follow, which is that
“… [w]e live and work in a civilized society, or at least that is our claimed aspiration. The challenge in the modern workplace is to bring people of diverse beliefs, backgrounds, and cultures together to work alongside each other to accomplish shared, productive goals. Civility becomes the one common bond that can hold us together in these circumstances.”
What does this mean for employers? Employers have the right to hold employees accountable when they engage in disrespectful behavior toward managers, other employees as well as disruptive behavior. This includes considering what employees post on social media. In a society today when civility to some appears to be a historical concept, employers may assert themselves. Be consistent and hold employees accountable for disrespectful, vulgar, disruptive, or other inappropriate behavior.
Based on newly aggregated data and evidence and the need to preserve laboratory testing resources, the CDC earlier this month revised its recommendations for nonhealthcare personnel to discontinue home isolation, which includes returning to work. The CDC now recommends a purely-symptom-based (i.e., non-test-based) approach of permitting an individual recovering from a mild to moderate case of COVID-19 to discontinue home isolation (return to work) when all of the following conditions are met:
Discontinuing a test-based return-to-work strategy should eliminate periodic difficulties employees may experience in locating testing resources and enduring unexpectedly long turnaround times, and should also relieve an employer’s concern for how genuine the employee’s effort to locate testing may have been. Moving away from a test-based return-to-work approach will also eliminate the barriers that “persistently positive” employees have faced in attempting to return to work. Evidence is growing that there is a “persistently positive” subset of the population that is incapable of transmitting the virus but continues to test positive for COVID-19 on the PCR test.
You can read the CDC recommendations on discontinuing home isolation here, and the CDC summaries on the background reports on which it revised its recommendations here.
From an employment law perspective, the EEOC has not revised its overall guidance that testing is generally permissible (Question 6). However, deferring to current CDC guidance on a symptom-based return-to-work strategy would reduce any potential legal exposure that might arise from the use of a test-based return-to-work strategy. (Remember also that the EEOC has already indicated that antibody tests are not permitted). Additionally, while we do not expect the EEOC to initiate any sort of enforcement action based on return-to-work testing, we would not be surprised to see a formal change to guidance in the coming weeks.
Finally, this return-to-work guidance alone cannot be used to shorten an employee’s entitlement to EPSL that is supported by a physician’s instruction for that employee to quarantine for a longer period.
The Equal Employment Opportunity Commission (EEOC) announced earlier this month that it had implemented two six-month pilot programs expanding opportunities for parties to resolve charges through mediation and increasing the effectiveness of its conciliation process. These pilots will apply to charges filed during the six-month periods beginning July 6, 2020 for mediation and May 29, 2020 for conciliation. The mediation program has been quite popular and successful in most districts for over 20 years. Participation is voluntary and almost always has occurred prior to investigation. Conciliation, required by statute after the investigation reveals cause to believe that a violation of law occurred, has not enjoyed the same popularity or success.
According to its July 7, 2020 press release, the Mediation Pilot :
“expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation … [and] expand the use of technology to hold virtual mediations.”
In other Pilot guidance, EEOC states that all charges are eligible for mediation, “with narrow exception.” The cited exceptions are charges EEOC determines to be without merit, Commissioner and Directed charges, when EEOC determines a party’s interest would not be well served by mediation, and any charge exempted by EEOC management. Historically, class and systemic charges, charges targeted for litigation and those filed under the Equal Pay Act (EPA) and Genetic Information Non-Discrimination Act (GINA) also have not been allowed mediation. However, agency representatives advise me that they are not automatically exempted during the Pilot.
Granting mediation requests after investigation is underway has been uncommon in most districts. Consistently allowing for mediation at whatever stage the parties agree it is appropriate will be a welcome change and will surely lead to more merit closures. Negotiated settlements have always been allowed by working with the investigator, but many respondent representatives will only negotiate through a mediator because of the guaranteed confidentiality. Of course, charging parties sometimes simply withdraw their charges during investigation after negotiating a settlement directly with the respondent. This change keeps everyone involved – the parties and divisions within the EEOC in the loop and all working toward a known goal.
Especially during these times of work and travel restrictions, the expanded use of virtual mediations will be crucial to the program. While some offices have had the ability to hold video conferences for years, some have not. It only makes sense to provide mediators with the means to hold virtual mediations, pandemic or not, to enhance the process with face-to-face meetings when otherwise not available. EEOC’s investment in this technology hopefully will extend beyond the Pilot.
These Pilots do not change my advice regarding requests for mediation: Any party interested in trying to resolve any charge at any stage through EEOC’s mediation program should send a written request to the assigned investigator and the ADR Coordinator for that office. An official confirmed that, at least during the Pilot period, whenever the parties request a charge go to mediation, an agency rejection of that request must be approved beyond the District level.
The Conciliation Pilot “makes a single change to the process to drive accountability.” It “builds on a renewed commitment for full communication between the EEOC and the parties … and adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.” It is very rare that local EEOC management is not in control of settlement offers made during conciliation and it has not been made clear how this changes present protocol. Since greater accountability is the stated goal of this change, I hope “appropriate level of management” will be defined clearly on a national level as different levels of management do sometimes have different opinions regarding conciliation of certain charges.
The renewed commitment for full communication between the EEOC and the parties could result in a meaningful change. The agency normally does not allow charging parties to attend conciliation conferences nor will it discuss evidence supporting its cause determinations with respondents. If “full communication” will allow all parties involved to openly discuss settlement options and the evidence upon which the cause determinations are founded, I certainly expect that conciliation will gain popularity and success.
The EEOC rarely allows a mediator or other neutral party to participate in a conciliation, a concern expressed by many respondents. While the default process continues to include only the investigator and respondent, the Pilot program allows for specific requests for mediation to be considered. When a request is approved, the process will include an EEOC mediator, the respondent, the charging party, and an EEOC representative. This change has the potential to move conciliation closer to common alternative dispute resolution practices.
These Pilot programs seem to show an effort on EEOC’s part to allow charging parties more involvement in the administrative process and respondents opportunities to make better informed decisions regarding these charges and resolve more employee disputes.
There appears to be a general belief within the agency that most, if not all, of the provisions of these Pilots will become permanent.
This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.
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