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November 4, 2020

When Your Family and Medical Leave Act (FMLA) is Running Out

Traditionally, the Family and Medical Leave Act (FMLA) allows employees to take an unpaid, yet job-protected leave of absence for a qualifying reason such as the birth/adoption of a child or taking care of a seriously ill loved-one. Since March 2020, however, the Families First Coronavirus Response Act (FFCRA) was enacted under the FMLA in order to provide employees up to 80 hours of paid sick leave time if they are quarantined, experiencing Covid-19 symptoms, or caring for a child who no longer has access to school or a childcare provider because of a coronavirus-related closure. But what happens when their leave time runs out and employees still do not have sufficient coverage to watch their children?

Many schools are not allowing a full-capacity return to the classroom, and parents and caregivers are finding they need to remain home. So what are employers to do when their employees are not able to return to the office? The FFCRA treats leave under the same provisions as the FMLA which states that employees are to return to the same or similar job at the expiration of their leave time. However, California state ordinances require employers to indefinitely pay sick leave to employees who need to stay home to care for their children while schools are closed. This includes schools that are operating under distance and hybrid learning systems.

There has been an unfortunate rise in discrimination and retaliation lawsuits against employers who act unfavorably towards employees needing to extend their leave due to coronavirus-related issues. While these past 7 months have brought about major adjustments in work and lifestyles, employers are encouraged to remain flexible. It is important to remember that employees play a pivotal role in business and that the employees may be struggling to adapt to this year’s changes. It would be highly beneficial to employees, employers, and businesses if employers continue to offer employees the ability to work from home, or to work in the office on a modified schedule revolving around school and childcare availability.

We are continuing to monitor the legal developments during these times and will provide updates as the events unfold. In the meantime, below are additional resources for your review.

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