October 28, 2021

Labor and Employment Newsletter

5 min


The FMLA: Issues Employers Don't Want to Get Wrong

The Family and Medical Leave Act of 1993 (FMLA) is nothing new. For 28 years, it has granted unpaid, job-protected leave to eligible employees for certain family and medical reasons. FMLA compliance issues are increasingly common, and during the pandemic we have seen an increased spotlight on employer leave policies.

D.C. Expands Universal Paid Leave Benefits

Effective October 1, 2021, many workers in the District of Columbia now have available to them expanded paid medical, parental, and family leave benefits under the District's Paid Family Leave (PFL) program, thanks to the Universal Paid Leave Emergency Amendment Act of 2021 (PLEAA). The expansion, currently enacted as emergency legislation, is temporary and set to expire on November 21, 2021, unless renewed. But the D.C. City Council is aiming to make the enhanced benefits permanent by including nearly identical provisions in the Fiscal Year 2022 Budget Support Act (Budget Support Act), which is currently under review by Congress. Since the Budget Support Act is expected to remain unchanged and take effect in January 2022, employers in the District should understand the expanded benefits available to their employees and their obligations under the PLEAA. Click below to read more.

COBRA Deadlines During the COVID-19 National Emergency

Because of the disruption wrought by COVID-19, certain federal agencies established the Emergency Relief Period to provide employers and individuals with extra time in which to take certain COBRA-related actions. Recently, the IRS issued guidance to clarify the way in which the Emergency Relief Period applies to the deadline for making an initial COBRA premium payment. The guidance also provides transition relief, allowing certain individuals to make their first COBRA premium payment later than the otherwise-applicable deadline, so long as the payment is made on or before November 1, 2021. The guidance is important to COBRA administrators—including employers who administer COBRA for their own group health plans—and to individuals who have not yet made their first COBRA premium payment. This alert provides a brief summary of the IRS guidance.

Education Roundup – What Should Independent Schools Do About the COVID-19 Booster?

By now, most independent schools are very familiar with COVID-19 vaccine policies. As an integral part of their health and safety policies for the 2021-2022 school year, many independent schools acted quickly by either requiring or strongly encouraging vaccines over the summer and, as a result, ensured that the majority (if not all) of their faculty and staff were fully vaccinated before the start of the school year. With evidence that vaccinated individuals' immunity to COVID-19 begins to wane after six months, however, schools may wonder how they can prevent their staff's waning immunity from causing an outbreak on campus later this year.

In the News

American City Business Journals Quotes Nick Reiter on Implementing an Unlimited Vacation Policy

On October 21, 2021, Nick Reiter was quoted in American City Business Journals on implementing an unlimited vacation policy. According to the article, interest in offering unlimited paid time off is rising as companies seek to save money and distinguish themselves in a competitive labor market.

Under traditional vacation policies, companies are often required to carry a liability on their books to cover payouts of unused vacation when an employee leaves a business. That can put a dent in a company's bottom line, and it's one reason unlimited vacation policies are attractive. While a shift to unlimited vacation could save money in the long term, it could also have significant short-term costs – especially if employers aren't strategic. According to the article, it's not as simple as just converting the policy at the beginning of a year. Companies need to determine what happens to PTO earned under the prior vacation policy.

Reiter said states have varying rules about potential payouts for that time and other requirements that employers need to be aware of. Working through those issues could be thorny for companies with operations in multiple states. There have been cases where employers didn't follow best practices or require workers to use all of their previously accrued time before the switch and then were hit with a significant cost when they had to pay out the time.

"Savvy employers will consult with their employment lawyers and craft a policy where before an employee can become eligible to use PTO under the new unlimited PTO policy, they must exhaust their PTO under the old policy," Reiter said. "That [can] nip in the bud all the claims that could come about for your old time that was earned under old policies."

Attorney Spotlight

Allison GotfriedAllison Gotfried: I fell into the practice of labor and employment law by pure happenstance. As a 1L in law school, I thought that I wanted to be a transactional attorney, but did not want to foreclose litigation until I had some experience in it. I joined the Unemployment Action Center, a student group in New York law schools that allows students to represent individuals who are appealing the denial of their unemployment insurance benefits in front of an administrative law judge in a quasi-judicial proceeding. I was nervous, but I felt like I needed to get the experience of appearing in front of a judge before I ruled out litigation entirely. I am so glad that I did. I became immediately interested in not just the practice of law, but in the field itself. Labor and employment law is fun, it is ever-changing, and it is interesting, but what I love most about it is that it is personal and relatable. I feel lucky that I get to do a job every day that I can connect with in that deeper way.

About the Labor and Employment Group

The bicoastal, 40-person Labor and Employment team at Venable provides guidance and support across the full spectrum of workplace dynamics – helping employers control costs, avoid disputes, and defend themselves when litigation arises. As co-editors of this newsletter, Michael Volpe and Doreen Martin invite you to share the content with your colleagues and reach out with any questions.