Another Round!!!

By Andrew J. Adams - Skoler, Abbott & Presser, P.C.

May 26, 2020

“Another Round!”—I  imagine someone at the Department of Labor (DOL) is yelling that phrase out right now as the DOL releases yet more Questions and Answers clarifying the Families First Coronavirus Response Act (FFCRA).  Some of the clarifications aim to address the impending “end-of-school-year” if it can even be called that; the others appear to address what may have been frequently asked questions about temp agency work and personal services.  Here are the highlights.

Teleworking Employees Now Requesting Leave

Have an employee who has successfully worked from home for weeks and suddenly needs FFCRA leave to care for their children?  Want to know why they could telework with the kids at home, and now they suddenly can’t?  The DOL addresses the employer’s ability to question the leave in a new Question and Answer.  Despite the many questions employers may have regarding why their employee’s situation has suddenly changed, the DOL states that employers may still only ask that their employees provide the qualifying reason for requesting the leave and submit an oral or written statement that the employee is unable to work because of this reason along with other required documentation, such as the age of the child and a representation that the employee is the only person providing care for the child.  The DOL indicates that employers are allowed to ask an employee to note any changed circumstance that led to the need for FFCRA leave in their statement, yet it cautions that an employer “should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.”

Time off for Summer Vacation…The Big Looming Question

Now that the end of the school year is approaching, the big question is, what now?  The FFCRA provided leave for those parents whose children were not able to attend school due to the nationwide closings as a result of COVID-19.  However, as with the end of any school year, most parents would have needed to seek alternative means of childcare for the summer anyway.  So, do they still qualify for leave under the FFCRA?  Well, yes and no.

The DOL firmly states that paid sick leave and expanded family and medical leave are not available simply because a school or child care provider is closed for the summer, if that is usually the case.  Closing for the summer is not the same as closing due to a COVID-19 reason, and summer closings do not provide employees with FFCRA-protected time off.   Still, if an employee is in a situation where the school or daycare would normally be open in the summer but is closed due to the pandemic, an employee may be able to take protected leave.  While seeking to clarify one issue, this guidance opens up other questions, including how to handle situations where parents elect not to send their children to their usual camp or childcare provider due to fear of COVID-19 even if those programs are open for the summer.  While we do not yet have all the answers (or questions that are likely to arise) the DOL has frequently updated its guidance, and when they are released we will pass those updates along to you here.

Finding out About Employees’ Symptoms

What can you ask an employee who is out with COVID-19 symptoms and seeking a medical diagnosis?  The DOL’s FFCRA regulations and the IRS Questions and Answers provide details on what documentation employers must obtain from an employee in order to approve his/her FFCRA leave and obtain tax credits for doing so. The new round of DOL Questions and Answers clarifies what information an employer is entitled to when an employee requests leave because the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.  According to the DOL, employers may require an employee to inform them what symptoms the employee is experiencing and to provide the anticipated date of their appointment or COVID-19 test.  Beyond that, employers may not require any additional certification or documentation regarding their use of paid sick leave for this reason.  The DOL states that this minimal level of required documentation was intentional.

Personal Services in Your Home & Temporary Employees.

While you are working and addressing your employers’ FFCRA requirements, you may have in the back of your mind questions about whether you personally have any obligations to those providing you services in your home.  The DOL also added Questions 89 and 90 addressing situations specific to the hiring of domestic workers as well as the use of temporary employees through a temporary staffing agency.  In (a very brief) summary, under the FFCRA, you are required to provide paid sick leave or expanded family and medical leave if you fall within the definition of an employer under the Fair Labor Standards Act (FLSA), regardless of whether you are an employer for federal tax purposes.

According to the DOL, if the domestic service workers are economically dependent on you for the opportunity to work, then you are likely their employer under the FLSA and generally must provide paid sick leave and expanded family and medical leave to eligible workers.  An example of a domestic service worker who may be economically dependent on you is a nanny who cares for your children as a full-time job, follows your precise directions while working, and has no other clients.

If, on the other hand, the domestic service workers are not economically dependent on you and instead are essentially in business for themselves, you are their customer rather than their employer for FLSA purposes.  The DOL provides as an example of a domestic service worker who is not economically dependent on you a handyman who works for you sporadically on a project-by-project basis, controls the manner in which he or she performs work, uses his or her own equipment, sets his or her own hours and fees, and has several customers. Likewise, a daycare provider who works out of his or her house and has several clients is not economically dependent upon you.

Now, what if you work for a temporary staffing agency not covered by the FFCRA because it has more than 500 employees?  The client business where an employee is placed may have to provide its temporary employees placed through an agency with paid sick leave or expanded family and medical leave if it has fewer than 500 employees and is a joint employer with the placement agency.

The Bottom Line

The impending summer months are bringing warmer weather (hopefully), more questions, and more potential liability for employers under the FFCRA.  Before making any decisions related to employee requests under the FFCRA employers would be wise to consult their labor and employment counsel as DOL guidance on the topic continues to be updated on an almost weekly basis.

We will continue to update employers as additional guidance is made available by the DOL, and our attorneys are available to answer any questions you may have about how these updates may apply to your workforce.