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4 Tips For Handling Leave Requests In The COVID-19 Era

By Anne Cullen · May 13, 2021, 12:58 PM EDT

While the rise in vaccination rates and the decline in infections in the U.S. may give businesses an optimistic outlook on returning operations to normal, experts say workers still struggle to manage the COVID-19 crisis and continued requests for virus-related leave should be expected.

Even with more than a third of the country fully inoculated against the coronavirus, experts advised that company leaders, especially those bringing employees back on-site, must recognize that workers will still need time away to manage their own health or the health of a loved one or to care for a child whose school or day care hasn't yet reopened.

"Leave is going to be a necessary part of the equation as far as employees and all the issues that they're facing," said Holly Wade, the executive director of the National Federation of Independent Business research center. "Going forward, until the virus is more under control, this will continue to be an issue."

A recent NFIB survey of small businesses revealed that worker requests for leave tied to the pandemic are still on the rise. In the report, which cataloged responses from late April and was published last week, more than half of the 550 respondents said that a worker had taken sick leave or family leave related to the virus.

This figure represents a significant jump from the December survey put out by the federation, in which a little over a quarter of the roughly 600 small employers that responded reported an employee taking leave related to COVID-19, the respiratory disease caused by the virus.

Employment experts said the trend wasn't surprising. As more businesses recall their workers on-site, they said, workers will continue needing leave for various reasons tied to the pandemic.

"COVID-related leave can be pretty broad, so if it's just general issues that are caused by the pandemic, those are still happening despite the vaccinations," said Christy E. Phanthavong, counsel at Bryan Cave Leighton Paisner LLP. "And I think we'll be dealing with that for quite some time."

As employers continue to field virus-related leave requests, here are four tips to make sure they're managing their workers' needs fairly while meeting the demands of their businesses.

Communicate Plans, but Be Flexible

Employment lawyers said that the most important thing an employer can do is to make clear what is expected from workers, particularly in regard to the approach to bringing team members back into the office, where there might be resistance and friction.

"Communication is always going to be key," Phanthavong said. "Employers need to be very clear with their employees about what their expectations are with respect to return-to-work and leave."

"They also need to make sure managers understand what those policies are as well," she said.

Setting out ground rules ahead of time about who is expected back and the reasons for it will go a long way toward smoothing out the process, and it can serve as an early warning sign for situations where it's not going to make sense, experts said.

However, even with an approach clearly set out, Phanthavong noted that businesses would be wise to be tractable with their plans.

"Continued flexibility is going to get us through this time period," she said. "So to the extent that employers can be flexible, while being consistent and checking with employees, that flexibility for a little bit longer is going to be important."

Don't Forget About Classic Leave Requests

While employers spent the past year focused on the coronavirus, many leave requests during the pandemic still fall into the traditional buckets that existed pre-COVID, said Alexis C. Knapp, a Littler Mendelson PC employment and labor shareholder.

Two federal laws predating the pandemic — the Family and Medical Leave Act and the Americans with Disabilities Act — obligate employers to allot team members time away from work for illness, care or disability-related reasons.

The FMLA requires employers with at least 50 people on payroll to grant up to 12 weeks of unpaid leave during a 12-month period to workers who need time off because of a "serious health condition" that they or someone in their family is experiencing. Under the ADA, a worker may be qualified for leave to accommodate a disability.

As recalled workers ask about potential leave offerings, Knapp said company leaders need to "keep their eyes and ears open for ways these requests can trigger traditional legal obligations."

"We're looking at everything through a COVID lens right now, but it's really important for employers to not miss requests that may trigger traditional FMLA and ADA considerations," Knapp said.

To accomplish this, she said it's a good idea for a business to designate someone on the human resources or benefits team to keep an ear to the ground for ADA and FMLA issues, if possible.

"If they've got their health and safety and benefits team navigating all the COVID safety and return-to-work stuff, it's important that someone on that team be looking and listening and watching for traditional FMLA and ADA considerations that need to escalate all the way into HR," Knapp said. "Because some of these things are going to shape up as those traditional obligations."

She also said that employers need to make sure that classic leave laws aren't excluded from businesses' virus-related communications with team members.

"In the implementation of COVID policies, return-to-work policies, all of those communications need to have a safety net so we're catching traditional FMLA and ADA obligations and we don't miss them," Knapp said.

Snag Federal Perks for Giving Leave

While the federally mandated leave under the Families First Coronavirus Response Act expired at the end of 2020, lawmakers have extended the tax credit businesses can get for offering virus leave through September under the American Rescue Plan Act.

The law offers small and midsize employers refundable tax credits that reimburse them, dollar for dollar, for the cost of providing paid sick and family leave wages to their employees for leave related to the pandemic.

However, while the NFIB survey published last week found that more than half of small employers had an employee take virus-related leave, it found that only 43% of these businesses claimed the tax credit. According to the report, 52% of small businesses surveyed said they were "not at all familiar" with the program.

There appears to be some growing awareness of this perk, as the percentage of businesses that said they were "somewhat familiar" with this offering ticked up slightly since the NFIB's report in March. But there's more work to be done, according to NFIB's Wade.

"While familiarity with the tax credit has increased and more are taking advantage of this program, there are still many small employers who are facing these challenges that aren't taking advantage of the program," Wade said.

She said claiming this tax credit could really help a lot of businesses struggling in the pandemic's fallout.

"Tax credits are often complicated and difficult to navigate, but this particular tax credit is very helpful financially for small firms in covering those costs," Wade said. "The more that they're aware and feel comfortable taking advantage, hopefully it will be helpful to more small-business owners that are facing these challenges."

Master the Legal Patchwork

While keeping track of federal, state and local laws is generally a no-brainer for businesses looking to stay out of legal trouble, experts said it's particularly important in the pandemic era, where the legal landscape can shift rapidly.

"The number one thing for managers and companies to know and understand is what the laws are with respect to what leaves are required to be granted, versus leaves that are requested that are discretionary," said Wigdor LLP partner Michael Willemin. 

The federally mandated leave law related to the pandemic, the Families First Coronavirus Response Act, timed out last year save for the lingering tax credit, but the White House is considering a fresh set of paid leave requirements in a new package.

The ambitious American Families Plan, which so far lacks Republican support, calls for most workers to receive at least two-thirds of their weekly paychecks — up to $4,000 per month — while they take time off to address a serious illness, care for a sick family member or recover from sexual assault or domestic violence, among other circumstances.

It would also ramp up the amount of paid leave available to workers over a 10-year period, with the full 12 weeks of leave usable by the end of the decade.

Employers must also keep an eye on the local landscape, as experts highlight that many states and localities have their own paid leave mandates that local businesses must follow.

"It's really important to remember that there are so many state and local laws that have been passed to deal with COVID, or enhancements to existing laws, like paid sick leave laws, where there could still be state and local obligations," said Littler's Knapp.

--Editing by Robert Rudinger and Vincent Sherry. 

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