HR Trends

National legal experts Tamika Newson and Ellen McCann discuss recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC) on how the Americans With Disabilities Act (ADA) impacts employers in the COVID-19 environment. Early on, the EEOC declared COVID-19 as a “direct threat” to the workplace. This means if an employee with COVID-19 presents themselves in the workplace, employers have an opportunity under the ADA to ask specific questions about their symptoms, direct them to not come to the workplace, and monitor when and how they return to work. We discuss this new guidance and best practices for granting accommodations under the ADA during the pandemic. 

Key takeaways

• In its recent guidance, the EEOC addressed underlying health conditions, and mental health in particular, noting that this may be an area where potential exposure will require employers to provide accommodations. [03:33]
• The EEOC recently clarified that employers are permitted to ask for medical information in response to the COVID-19 pandemic. However, it acknowledged that employers may not be able to get the same records as in normal times and encourages employers to make reasonable decisions. [04:34]
• Employers cannot make assumptions based on who they think is vulnerable — such as people 65 and older or pregnant women. Employees, however, can let their employers know if they have concerns and ask for accommodations. [06:51]
• What constitutes a reasonable accommodation? The EEOC is encouraging employers to make any accommodations they can to keep people with disabilities in the workforce, but the Commission is also being reasonable in its definition of undue hardship in this economic environment. [08:13]
• Accommodations granted during this time can be made on a temporary basis. Employers can revisit determinations as the pandemic situation changes. [10:23]

For more information, visit these EEOC resources:  

Pandemic Preparedness in the Workplace and the Americans With Disabilities Act

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Tamika Newson
Assistant Vice President and Legal Counsel, Unum's Law Group

Tamika Newson joined Unum after 22 years of employment law counseling and litigation as a Partner in several large law firms. Prior to joining Unum, she litigated employment matters nationwide. Tamika advises Human Resources on all employment-related legal issues, with particular emphasis on FMLA, ADA, leaves of absence, wage/hour compliance, military leaves, restrictive covenants and employee-relations issues. She also provides daily legal support to Unum's Leave Management Center and its ADA Services Center. Tamika received her BA from DePauw University and her JD from Hamline University School of Law (now Mitchell Hamline). She is a certified trainer for CE credit and is a frequent national speaker on FMLA and ADA. She has been selected as a “Best Lawyer in America” in the area of employment law every year from 2013 to 2019.    

More resources: 

EEOC Guidelines 

Check out the latest FAQs from the EEOC. Read more.

ADA Handbook 

Read Unum’s popular guidebook to the ADA

Get in touch:
[email protected]
(207) 200-6685

Laurie Mitchell is a national thought leader on well-being and health management. She discusses how Unum’s HR organization is helping to foster employee well-being during the coronavirus pandemic. We also cover resources organizations can tap into to support their workforce and how leadership can communicate in humanizing ways.

Key takeaways

• The foundation for emotional and physical resilience is self-care. Be intentional and deliberate around building your own wellness: from your diet and regular meals, to physical activity and sleep. [03:38]
• Don’t underestimate the importance of social support. Employees will appreciate hearing from leaders in personal and humanizing ways — explore informal gatherings as well as company updates. [06:00]
• Businesses with smaller HR functions have access to important resources: Start with your medical plan — what resources can you tap into there? An employee assistance program (EAP) can also provide resources for mental health or emotional support. Finally, organizations can look to community resources through their state’s 211 program. [12:10]
• For all your communications, aim to use a designated HR point of contact. This ensures that all employees get consistent information. [14:02] 

Laurie Mitchell
AVP, Global Wellbeing & Health Management at Unum

 Laurie Mitchell took a slightly nontraditional career path for a registered dietitian nutritionist and has been leading comprehensive employer-sponsored population health and well-being strategy for more than 22 years. Her work focuses on actively engaging employees in their well-being through a mix of innovative programs, benefits, policies and health-forward environmental approaches. Before joining Unum, she held similar positions at MaineHealth, an integrated health care delivery system in Maine; Public Service Enterprise Group, an energy company in New Jersey; and Beth Israel Medical Center in New York City. She also had a private nutrition practice in NYC.

 
Resources:
Unum Mental Health Report [A1]
Help your employees navigate the coronavirus quarantine

Get in touch:
[email protected]
(207) 200-6685

National leave expert Ellen McCann takes us on a deep dive into the latest guidance around Emergency Paid Sick Leave. The Emergency Paid Sick Leave Act (EPSLA) is one of two key components in the Families First Coronavirus Response Act (FFCRA). It applies to organizations with fewer than 500 employees and public agencies.

Key takeaways

• The measurement period for determining number of employees is as of the date the employee is going to be using the paid sick leave. [02:40]
• An employee is entitled to leave equivalent to two weeks of their normal schedule. If an employee is normally scheduled to work 40 hours a week, they would be entitled to 80 hours. [03:39] 
• There are six reasons for leave, in two key categories. [04:57]
• For an employee to access Emergency Paid Sick Leave, they need to be either subject to a quarantine order (including a shelter in place order if it prevents them from working) or advised by their medical provider to self-quarantine. The employee can also take this leave if they have symptoms and are seeking a diagnosis. [05:58]
• This form of leave does not apply to employees who are furloughed. [08:53]
• Additionally, an employee can take Emergency Paid Sick Leave to care for their child whose school or place of care is closed or to care for an individual who is subject to a quarantine order/doctor’s order to self-quarantine. [09:26]
• The Department of Labor has offered further guidance on the Families First Coronavirus Response Act — check their FAQ page. 

Ellen McCann
Assistant Vice President, Legal Counsel at Unum’s Employment Law Group 

Ellen McCann is an acclaimed national speaker on leave management issues including FMLA and ADA. She is also a certified trainer for SHRM and CE credit. As Assistant Vice President, Legal Counsel for Unum’s Employment Law Group, Ellen advises Human Resources on all employment-related legal issues. She also provides legal support to Unum’s Absence Management Center, which provides leave administration services to its customers. Presently, Unum’s leave administration product includes administration of close to 200 state leave laws in addition to FMLA and covers over 2.2 million lives. 

Resources: 

Families First Coronavirus Response Act (Apr. 8, 2020)[A1] 

The impact of COVID-19 is expanding nationwide and significantly affecting the workplace. Watch this webinar to learn more. 

Get in touch:
[email protected]
(207) 200-6685

As the COVID-19 pandemic continues to disrupt life and businesses in the U.S., we explore two key federal resources for organizations with fewer than 500 employees. Ellen McCann offers recent legislative updates to the Families First Coronavirus Response Act (FFCRA). Laura Kilmartin then unpacks the Paycheck Protection Program, a Small Business Administration (SBA) lending program designed to encourage businesses to keep their employees on the payroll. 

Key takeaways

• The Department of Labor has offered further guidance on the Families First Coronavirus Response Act – check their FAQ page. On April 9, we will release a special episode to cover the key updates. [02:55]
• The Paycheck Protection Program (PPP), administered by the SBA, is applicable to any small business with fewer than 500 employees, including sole proprietorships, independent contractors, self-employed persons and tax-exempt non-profits and veterans’ organizations. Several other employer types are designated by the SBA as small businesses even if they have more than 500 employees — check their website for updates. [05:17]
• A loan under the PPP has a two-year maturity and 1% interest rate. However, it is intended to act like a grant and will be forgiven if all employees are kept on the payroll for eight weeks and the money is only used for authorized purposes. [07:21]
• The rules are fairly simple: Loan proceeds must be used for payroll costs, including insurance premiums; mortgage interest; rent; and utilities. A total of 75% of the forgiven amount must have been used for those costs, and forgiveness is based on the employer maintaining or quickly rehiring all employees and maintaining salary levels. [10:02]
• Any SBA lender or federally insured bank or credit union is eligible to issue loans through this program. Check with your local lender to see if they are participating in the program. Fill out a loan application before June 30, 2020, but the sooner the better — limited funds are available. [14:07]
• Check the Small Business Administration website for more information. 

 Laura Kilmartin
AVP, Government Affairs, Unum 

Laura is an insurance professional and attorney with a specific focus on government affairs and regulatory compliance. As Assistant Vice President of the Government Affairs organization at Unum, Laura focuses on state legislation and paid family leave. Since joining Unum in 2000, Laura established claims policies and practices for the benefits organization to ensure compliance with legislative and regulatory requirements and support new IT, product and leave initiatives. She also managed the Benefits Quality Assurance programs for all Unum’s insurance products and leave services.  

Get in touch:
[email protected]
(207) 200-6685

Ellen McCann walks through the latest guidance from the Department of Labor on the Families First Coronavirus Response Act (FFCRA). Followinglast week’s episode, [MC1] which set the groundwork for the law, today we discuss new details such as how to count your number of employees and how the law applies if your business is closed or your employees are being furloughed. 

Top takeaways:

• How do you know if you have 500 employees? The employer threshold count is measured as of the date the employee uses the leave. It includes anyone on the payroll (U.S. only) and temporary employees. [03:50]
• Furloughed employees are not eligible for Emergency FMLA or Emergency Paid Sick Leave, as they are no longer working. If your business is closed, employees are also not entitled to the leave. [05:48]
• Traditional FMLA laws continue to apply unless they are specifically called out as having been changed by this law. [07:48]
• You can combine this new leave entitlement with PTO and corporate leave, but there are conditions. [11:48] Listen to Part 1 here and check the DOL’s website and their FAQ page for full guidance. 

This program is not intended to constitute legal advice and is for general educational purposes only. If you need legal advice on a particular situation, please contact your own attorney. 

Get in touch:
[email protected]
(207) 200-6685

In response to the COVID-19 pandemic, our upcoming episodes will be offering updates on the fast-changing legislation around leave management. In this episode, Ellen McCann explains the “Families First Coronavirus Response Act” (FFCRA), which was passed by the U.S. Senate. She unpacks the two key components of the law: Emergency Paid Sick Leave and Emergency FMLA.

Top takeaways

• The law only applies to employers with fewer than 500 employees. This is different from the traditional FMLA threshold of 50 employees. [02:02]
• All employees who work for a covered employer can take Emergency Paid Leave. Employees who have been employed for 30 days can take Emergency FMLA. [05:26]
• Update: After recording this episode, the Department of Labor issued further guidance. They released the mandatory poster and also offered guidance on how the tax credit will work. Keep checking the DOL website for updates.

About the Speaker:
Ellen McCann
Assistant Vice President, Legal Counsel, Unum’s Employment Law Group

Ellen McCann is an acclaimed, national speaker on leave management issues including FMLA and ADA. She is also a certified trainer for SHRM and CE credit. As Assistant Vice President, Legal Counsel for Unum’s Employment Law Group, Ellen advises Human Resources on all employment-related legal issues. She also provides daily legal support to Unum’s Absence Management Center, which provides leave administration services to its customers. Presently, Unum’s leave administration product includes administration of over 200 state leave laws in addition to FMLA and covers over 2.2 million lives. 

Resources:
Download our FMLA Handbook here.
What state laws apply to your business? Get the facts.

Get in touch:
[email protected]
(207) 200-6685

Top FMLA mistakes: “Deeming” when you shouldn’t

In this episode, Ellen McCann explains how employers often incorrectly deem eligibility for the Family Medical Leave Act in two major ways. She offers best practices and advice on what to do if you’re unable to deem employees eligible for FMLA.  

Top takeaways:

• It’s important you understand why you cannot deem an employee eligible for FMLA if they are not eligible [01:34]
• Employers tend to violate this rule in two major ways: 1) Deeming an employee eligible who hasn’t met those strict eligibility requirements, and 2) saying a leave event is FMLA when it isn’t covered [03:34]
• If you wish to be more generous for employee eligibility or types of leave, the solution is to craft a corporate leave policy. [04:25]
• Make sure you’re doing the employee evaluation for all employees applying for FMLA: Resist the temptation to be more generous without doing your homework. Count the hours worked, the number of employees in the office the employee is reporting into. [07:18]

About the Speaker:
Ellen McCann
Assistant Vice President, Legal Counsel, Unum’s Employment Law Group

Ellen McCann is an acclaimed, national speaker on leave management issues including FMLA and ADA. She is also a certified trainer for SHRM and CE credit. As Assistant Vice President, Legal Counsel for Unum’s Employment Law Group, Ellen advises Human Resources on all employment-related legal issues. She also provides daily legal support to Unum’s Absence Management Center, which provides leave administration services to its customers. Presently, Unum’s leave administration product includes administration of over 200 state leave laws in addition to FMLA and covers over 2.2 million lives. 

Resources:
Download our FMLA Handbook here.
What state laws apply to your business? Get the facts.

Get in touch:
[email protected]
(207) 200-6685

Top FMLA mistakes: Misunderstanding eligibility 

Ellen McCann, a national expert on leave management joins us to give an overview to the Family Medical Leave Act (FMLA). She unpacks the most common eligibility errors that employers make while administering the FMLA – and why correctly determining eligibility is such a crucial first step. 

Top takeaways:

• Be sure to take all required factors into account when determining whether an employee is eligible for FMLA leave. It’s your crucial first step in FMLA compliance. [01:39]
• Once an employer is covered for one year, they’re covered for two years. Check your math: Did you have at least 50 employees on your payroll for at least 20 weeks this year or last year? [04:03]
• The only employees you don’t count are expats and independent contractors. You do need to count temps. [05:20]
• Remember there are different standards for covered employers and covered employees. You may have no covered employees, but as an employer you may still have obligations. [06:34]
• You don’t have to count leaves of absence in your hours worked, apart from instances of military leave. However, be careful to count hours worked by temp workers. [10:05]

To understand more about employee eligibility and the risks of improperly deeming eligibility, listen to next week’s show, “Deeming when you shouldn’t.” 

About the speaker:
Ellen McCann
Assistant Vice President, Legal Counsel, Unum’s Employment Law Group

Ellen McCann is an acclaimed national speaker on leave management issues including FMLA and ADA. She is also a certified trainer for SHRM and CE credit. As Assistant Vice President, Legal Counsel for Unum’s Employment Law Group, Ellen advises Human Resources on all employment-related legal issues. She also provides daily legal support to Unum’s Absence Management Center, which provides leave administration services to its customers. Presently, Unum’s leave administration product includes administration of over 200 state leave laws in addition to FMLA and covers over 2.2 million lives. 

Resources:
Download our FMLA Handbook here.
What state laws apply to your business? Get the facts.

Get in touch:
[email protected]
(207) 200-6685