FMLA Emergency Procedures & Response 2 — Questions and Answers
Question 1: Which 2020 federal law temporarily expanded FMLA coverage for childcare-related leave during a public health emergency?
- The CARES Act
- The Families First Coronavirus Response Act (FFCRA) (Correct answer)
- The Americans with Disabilities Act Amendments Act
- The Emergency Paid Sick Leave Act
Correct answer: The Families First Coronavirus Response Act (FFCRA)
The Families First Coronavirus Response Act temporarily expanded FMLA as Emergency FMLA to cover leave for employees unable to work because their child's school or care facility was closed due to a public health emergency.
The FFCRA effective April 2020 created Emergency Paid FMLA Expansion covering childcare needs due to COVID-19 school closures. This expanded coverage to smaller employers but also temporarily changed the benefit structure. While expired, administrators must understand this law for historical audit and compliance reviews.
Question 2: When an employee calls in sick but gives no specific reason, under what condition should the administrator inquire about FMLA eligibility?
- Never, the employee must always affirmatively invoke FMLA
- When the employee's absence could qualify for FMLA based on known or communicated information (Correct answer)
- Only when the absence exceeds 3 consecutive days
- Only when the employee has previously been approved for intermittent FMLA leave
Correct answer: When the employee's absence could qualify for FMLA based on known or communicated information
The employer has an affirmative duty to inquire about possible FMLA eligibility when it has enough information suggesting the absence may be FMLA-qualifying, even if the employee does not specifically mention FMLA.
29 CFR 825.303 imposes a duty on employers to designate FMLA leave and notify employees once they have sufficient information suggesting the absence is FMLA-qualifying, even without an explicit FMLA request. The administrator should follow up and obtain additional information when the reason for an absence could qualify as a serious health condition or other FMLA-covered reason.
Question 3: An employee has an approved intermittent FMLA leave plan. During an emergency all-hands meeting, the employee leaves early citing their FMLA condition. Can the employer discipline the employee?
- Yes, attendance at mandatory meetings is always required
- No, using approved intermittent FMLA leave cannot be the basis for discipline (Correct answer)
- Yes, if the employee did not provide advance notice
- Only if the meeting was announced more than 48 hours in advance
Correct answer: No, using approved intermittent FMLA leave cannot be the basis for discipline
An employer cannot discipline an employee for using approved intermittent FMLA leave, even during important meetings. FMLA prohibits any adverse employment action taken because of FMLA leave use.
Under 29 CFR 825.220, any adverse employment action that would not have occurred but for the employee's FMLA leave constitutes interference or retaliation. If an employee has an approved intermittent FMLA plan and leaves due to their FMLA condition, disciplining them for that departure, even during critical meetings, violates FMLA. Employers should design attendance policies that expressly exclude FMLA absences from discipline calculations.
Question 4: A natural disaster destroys an employer's FMLA records. What is the employer's obligation?
- None, destruction of records due to natural disaster is an absolute defense
- The employer must reconstruct records to the extent possible and document the disaster (Correct answer)
- The employer must refile all employee FMLA requests
- The employer faces automatic penalties of $500 per lost record
Correct answer: The employer must reconstruct records to the extent possible and document the disaster
While the DOL recognizes force majeure events, employers are expected to make good-faith efforts to reconstruct records and document the circumstances of the loss.
While there is no explicit FMLA regulation addressing natural disaster record destruction, the DOL applies general principles of good faith compliance. Employers should document the disaster, notify the DOL if records are unavailable for an inspection, reconstruct records from available sources, and implement backup recordkeeping systems going forward. Courts consider the employer's good-faith effort in enforcement proceedings.
Question 5: An employee on FMLA leave for a qualifying exigency has an unexpected family emergency requiring immediate travel. What notice obligation applies?
- The employee must provide 30 days advance notice
- The employee must provide notice as soon as practicable under the circumstances (Correct answer)
- No notice is required for emergencies
- The employee must get supervisor approval before departing
Correct answer: The employee must provide notice as soon as practicable under the circumstances
When FMLA leave for a qualifying exigency is unforeseeable, the employee must provide notice as soon as practicable, which generally means the same day or the next business day.
29 CFR 825.302(b) states that for unforeseeable FMLA leave, notice must be provided as soon as practicable, which means the same day or next business day if the employee cannot provide advance notice. Failure to give timely notice may result in denial or delay of the leave.
Question 6: During a business continuity emergency, an employer asks an employee on FMLA leave to perform work from home. What does FMLA require?
- The employee must comply if the work can be done remotely
- FMLA prohibits employers from requiring work during FMLA leave; the employee may decline (Correct answer)
- The employee may perform work but must be paid at overtime rates
- The employer may threaten termination if the employee refuses
Correct answer: FMLA prohibits employers from requiring work during FMLA leave; the employee may decline
FMLA leave is protected time off. Employers cannot require employees to perform work during FMLA leave. Doing so would constitute interference with the employee's FMLA rights.
29 CFR 825.220(b) prohibits employers from interfering with, restraining, or denying the exercise of FMLA rights. Requiring an employee to work, even remotely, during approved FMLA leave constitutes interference. Administrators should instruct managers never to contact employees on leave with work demands.
FMLA Emergency Procedures & Response 2
Which 2020 federal law temporarily expanded FMLA coverage for childcare-related leave during a public health emergency?