The Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020, and took effect on April 1, 2020. In the intervening 14 days, the Wage and Hour Division of the U.S. Department of Labor issued and revised various guidance documents on its website that interpret the Emergency Paid Sick Leave Act (EPSL”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) provisions of the FFCRA. The most recent substantive revisions to the DOL’s Q&A were made on March 27, 2020, and March 28, 2020. On April 1, 2020, the DOL issued its temporary (but final) rules.
There are many items in the DOL’s Q&A and Rules that raise questions and call for even more clarifying — too many to cover in a single blog post. One that is vexing, in particular, is the DOL’s failure to address the inconsistent definitions of “son or daughter” in the FFCRA.
The fifth of six qualifying reasons for taking emergency paid sick leave occurs when the employee is unable to work or telework because “the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.” The statute says the term “son or daughter,” as used here, means the same thing as it means in the regular FMLA. The FMLA definition of “son or daughter,” includes “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability.”
So far, so good. EPSL uses the same definition for “son or daughter” as the regular FMLA. Employers who are FMLA-covered are used to this definition.
The EFMLEA amends the regular Family and Medical Leave Act (“FMLA”) in a special Section that will be added to the FMLA, titled “Public Health Emergency Leave.” (The EFMLEA is not a stand-alone law like the EPSL.) Thus, unless specifically changed by the EFMLEA, it should be a safe bet that provisions of the FMLA not changed by the EFMLEA apply equally to the EFMLEA. Indeed, the definitions section of the EFMLEA statute specifies that regular FMLA definitions apply to any terms not defined in the EFMLEA.
 Division E, Section 5102(a)(5), of the FFCRA.
 Division E, Section 5110(4), of the FFCRA.
 29 U.S.C. § 2611(12).
 Division C, Section 110(a)(1), of the FFCRA.
Here’s where things get interesting. The qualifying reason for taking expanded family and medical leave act leave (“EFMLA”) was placed in an amendment to the definitions section of the FMLA. It defines the “qualifying reason” for EFMLA leave as being when the employee is unable to work or telework “due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” By this plain language, EFMLA use is limited to caring for only minor children. That differs from both the usual definition of “son or daughter” under the regular FMLA, and it differs from the EPSL’s definition of “son or daughter” (which incorporates the regular FMLA definition).
The DOL’s Q&A # 40 makes no mention of this difference between the EPSL’s and the EFMLEA’s definition of “son or daughter.” Instead, the DOL says it “clarifies” – yes, that is the word the DOL used – that “under the FFCRA” the phrase “son or daughter” will include an individual to is 18 years of age or older and who is incapable of self-care because of a physical or mental disability. Because both the EPSL and the EFMLEA are in the FFCRA, the DOL is making the definition apply to both types of leave, equally. The DOL’s Rules issued on April 1, 2020 restates and reinforces this position.
The DOL appears to be reading the phrase “under 18 years of age” out of the EFMLEA, as if it does not exist. We do not know why the DOL is not following what Congress wrote. It means two things: First, the DOL’s interpretation is open to challenge. Second, employers whose employees want to use EFMLA leave for a disabled son or daughter who is 18 or older should seek the advice of competent legal counsel to decide whether to follow the statute Congress wrote or the regulation the DOL wrote to enforce law.