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DOL Launches FFCRA Leave Tool, SCOTUS Rules on Sexual Orientation and Gender Identity Discrimination

By Higginbotham on June 29 , 2020

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DOL Launches Employee Tool for Assessing FFCRA Leave Eligibility

The U.S. Department of Labor (DOL) has created an online tool to help workers determine whether they qualify for paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The tool works by posing a series of questions that help employees assess whether the paid leave provisions of the FFCRA apply to their employer. Once employees learn the provisions do apply, the tool then assists them in determining whether they qualify for FFCRA paid sick leave or expanded family and medical leave.

As a reminder, the FFCRA, enacted on March 18, 2020, created two types of employee leave for coronavirus-related purposes for employers with less than 500 employees: paid sick leave and expanded Family and Medical Leave Act leave. Paid sick leave provides eligible employees with 80 hours of compensated leave for specified COVID-19 reasons, including:

  • A quarantine or isolation order for the employee or someone the employee is caring for, or medical advice to self-quarantine;
  • When the employee has symptoms of COVID-19; or
  • When the employee’s child’s school or child care facility is closed.
Compensation rates for paid sick leave under the FFCRA depend on the reason for the leave. The expanded family and medical leave provisions of the law allow 12 weeks of partially compensated leave to care for a child whose school or child care facility has been closed due to COVID-19. Employers that provide the required leave are eligible to be reimbursed through tax credits.

Employer Takeaway
The DOL is also developing a similar tool for employers. In the interim, employers can use the employee tool to help determine employee eligibility.


DOL/EEOC Update COVID-19 Guidance

The Departments of Labor, Health and Human Services and the Treasury (Departments) have provided answers to a second set of frequently asked questions (FAQs Part 43) about health coverage issues related to COVID-19, including implementation of the FFCRA and the Coronavirus Aid, Relief and Economic Security Act (CARES Act). The FAQs provide guidance on a variety of topics related to health plan coverage. For example, the FAQs:

  • Provide that COVID-19 testing for surveillance or employment purposes is not subject to the coverage mandate under the FFCRA and CARES Act;
  • Confirm that the FFCRA and the CARES Act generally prohibit balance billing for COVID-19 diagnostic testing;
  • Allow health plans to revoke the temporary COVID-19-related coverage changes without satisfying certain notice deadlines, provided participants are notified within a reasonable time frame in advance of the reversal of the changes; and
  • Allow large employers to offer coverage for telehealth and other remote care services to employees who are not eligible for any other group health plan offered by the employer during the public health emergency.

In addition, the Equal Employment Opportunity Commission (EEOC) issued additional answers to FAQs about how employers should comply with the Americans with Disabilities Act (ADA) while also observing all applicable emergency workplace safety guidelines during the coronavirus pandemic. The new FAQ, which addresses antibody tests (see A.7), was added to guidance that the EEOC previously issued. The FAQs draw from the EEOC’s existing pandemic publication, Pandemic Preparedness in the Workplace and the ADA, to help employers navigate workplace issues related to COVID-19. In particular, the EEOC’s FAQs include information from a section of the publication that answers employer questions about what to do after a pandemic has been declared.

Employer Takeaway
Employers that sponsor group health plans should become familiar with the FFCRA’s and CARES Act’s changes for their health plans. All employers should follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies. Employers with 15 or more employees should also become familiar with and follow the guidance provided in the EEOC’s FAQs about ADA compliance. These and all smaller employers should ensure that they comply with state and local anti-discrimination laws as well.


Supreme Court Rules Sexual Orientation and Gender Identity Discrimination Violates Title VII

In non-coronavirus related news, on June 15, 2020, the U.S. Supreme Court ruled that Title VII of the federal Civil Rights Act (Title VII) protects individuals against employment discrimination based on their sexual orientation or gender identity.

Title VII prohibits employers with 15 or more employees from discriminating against employees and job applicants on the basis of race, color, religion, national origin or sex. Federal courts have previously held that the law’s protections only extend to traditional notions of gender. The Supreme Court’s opinion in Bostock v. Clayton County reverses those rulings, holding that discrimination based on homosexuality or transgender status necessarily involves intentionally treating individuals differently because of their sex, which is prohibited by Title VII. The Court also ruled that when an employer takes adverse action against an individual who is gay or transgender only in part because of that individual’s sex, that action still violates Title VII. This is true even if the employer subjects male and female homosexual or transgender individuals to the same rule.

Employer Takeaway
Employers may need to review their employment policies to ensure that they do not discriminate against individuals due to their sexual orientation or gender identity. Employers should also be aware that the Court’s ruling aligns with the EEOC’s current Title VII enforcement policies and that state laws may specifically prohibit employment discrimination based on sexual orientation and gender identity.


 

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