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    COVID: Emergency Leave and Employment Litigation Risks

    Posted by Lauren Walchek on November 12, 2020

    Keeping your practice open through the pandemic is critical for your patients and your team. After all, patients rely on you to stay healthy, and your employees count on their paychecks to cover essential expenses in their personal lives.

    However, COVID-19 created unprecedented challenges for healthcare providers. Limited personal protective equipment, potential exposure from patients, and canceled appointments are just the beginning. Your employees may need more time away from work than usual, but accommodating additional leave time gets complicated as the pandemic rages on. 

    COVID: Emergency Leave and Employment Litigation Risks

    Managing Time Away from Work During COVID-19

    Practice owners and office managers are working hard to balance the needs of their team with keeping the practice running smoothly. That includes maneuvering through staffing issues when employees must care for family members or fall ill themselves, while simultaneously arranging for time off and leaves of absence that comply with brand-new regulations. 

    Staying on top of legal obligations can be difficult in the best of circumstances, but today it is harder than ever. Regulations have been adjusted to meet the needs of pandemic-stricken communities, and even the most well-intended office managers can find themselves on the wrong side of the law. 

    These tips make it easier to comply with new regulations, and they help you avoid unintended consequences from well-intentioned employment decisions. 

    The Families First Coronavirus Response Act (FFCRA)

    The Family Medical Leave Act (FMLA), in its original form, required employers with 50 or more employees to grant 12 weeks of unpaid leave to eligible employees. The Families First Coronavirus Response Act temporarily expanded FMLA leave benefits to include protected time away from work for employees of companies with less than 500 employees. Under certain circumstances, employers might be required to pay team members for a portion of that leave time. 

    The tricky part is that your team members might not be covered under the FFCRA, which contains an exemption for health care providers and certain members of their teams. If you choose to claim this exemption and restrict your employees from taking leave under the FFCRA, it is wise to seek legal guidance. Before exercising this exception, you should also consider what team members will do if they become ill or must care for family members. 

    If you do not choose an exemption and you offer your team the option of leave under the FFCRA, the amount of time employees can take leave is limited to 12 weeks. However, that presents a new problem for both you and your team. Some of your employees have likely exhausted their covered time away from work, but they still have family obligations. They can’t come to work, leaving you short-staffed, which creates a dilemma. Should you simply separate employment when job protection expires? 

    Recommended Reading: What's the Difference Between Termination and Resignation? 

    Next Steps when FFCRA Leave is Exhausted

    The FFCRA doesn’t speak to employer obligations once FFCRA leave is exhausted, and it doesn’t appear that legislation addressing this issue will be passed in the near future. That makes releasing team members when they run out of FFCRA-covered time a risky decision. Until the details are clarified, it’s best to be cautious - you don’t want your practice to be the test case for a lawsuit. Instead, protect your practice from claims of discrimination, retaliation, and similar by engaging in an interactive problem-solving conversation. 

    Consider this an extension of your current process for reasonable accommodations under the Americans with Disabilities Act. Chances are, you have already detailed this process in your employee handbook, which makes it easier to manage. Explain the needs of the practice to impacted team members, and ask for more information about the obstacles preventing them from returning to work. Look for a mutually-beneficial solution, perhaps a short leave extension for optometric technician or reduced schedule for your dental hygienist, that creates a win/win situation.

    If your team member has unused PTO, vacation, or sick time available, you can offer to pay those hours out during the extension period. Otherwise, you are under no obligation to offer pay during this portion of the leave.

    Pitfalls to Avoid in Managing FFCRA Leave

    The biggest risk you take in managing accommodations once FFCRA leave is exhausted is staying fair and consistent between employees. While your employees' situations aren't exactly the same, it is critical that each team member is given similar consideration. If some employees are permitted additional time off, changes in their schedule, or the option to work remotely and others are not, you may receive complaints of discriminatory or retaliatory treatment. 

    When you are unable to resolve these concerns within your practice, team members may choose to contact agencies like the Equal Employment Opportunity Commission (EEOC). Such claims are costly and time-consuming to fight. Fortunately, you can avoid risk by focusing on fair, consistent, and equitable treatment when finding solutions for employees impacted by COVID-19. 

    HR for Health has the tools you need to optimize your health care practice and stay up-to-date with the ever-changing FFCRA regulations. Contact us today to learn how we help you manage your HR, so you and your team can devote more time to patient care.

     


    Did you know that we at HR for Health monitor all the specific laws and regulations that affect your practice? If you have questions about compliance issues, please reach out to us. Schedule a call, call (877) 779-4747, or email compliance@hrforhealth.com now to learn more.


    HR for Health is one of the nation’s leading Human Resources Management Systems (HRMS) used by small to mid-sized practices. 


     

    Quick note: This is not to be taken as legal or HR advice. Since employment laws change over time and can vary by location and industry, consult a lawyer or HR expert for specific guidance. Learn about HR for Health's HR services

    Topics: leave of absence, employment law, medical leave of absence, leave, covid-19, coronavirus

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