As we previously reported, on April 1, 2020, the U.S. Department of Labor (“DOL”) released a temporary rule (“the Rule”), at 29 C.F.R. § 826, regarding administration of the paid leave provisions in the Families First Coronavirus Response Act (“the Act” or “FFCRA”). Since publication of the Rule, the DOL has issued some corrections to the Rule itself, and additional Q&A and the DOL recently updated the FAQ to add 5 additional Q&A guidance on areas of concern to employers.
First, the DOL provided guidance on the issues of joint employment and whether workers who provide services such as landscaping, cleaning and/or child care in someone’s home are covered by the FFCRA. Specifically, in FAQ #89, the DOL reminds potential employers that the definition of employment under the FFCRA is the broad definition from the Fair Labor Standards Act – whether the worker is economically dependent upon the entity for the opportunity to work. The DOL states “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 a worker fits that definition, then you may be obligated to provide leave under the FFCRA.
The DOL follows that with FAQ #90 on joint employment and the FFCRA. Specifically, the DOL points out that a worker employed by a staffing agency and a client company may have two opportunities to be eligible for FFCRA leave. Meaning if one entity has over 500 employees but the other entity does not, the worker may be eligible for leave from the second entity provided the two entities are considered joint employers. The DOL reminds companies that if they exercise control over the terms and conditions of work, than they will be a joint employer and would be obligated to provide leave under the FFCRA. The DOL considers whether the second entity has the right to hire/fire, supervises/controls work schedule and determines pay, it would likely be a joint employer with the staffing agency in making the determination of control.
The DOL next provides guidance on whether an employee who is able to telework would still be able to seek FFCRA benefits if their child’s school is closed. In FAQ #91, the DOL tells employers that the employee’s verbal or written statement that they are unable to work due to school closure is all employers can require even if the employee has been successfully teleworking from home since the outset of the pandemic. In other words, if the employee meets the requirements of the paid leave, leave cannot be denied simply because the employee did not request it earlier. The DOL does point out that employers can discipline employees for falsely asking for leave – e.g., in the event the employee does not have children but seeks leave due to school closures.
In FAQ #92, the DOL clarifies that if an employee is seeking paid sick leave under the FFCRA, that the employee’s own identification of his/her symptoms and a date for a doctor’s appointment/test is sufficient to support the need for leave. Employers cannot require additional documentation to prove that the employee actually had an appointment or test which was done intentionally for employees to take leave and stop the spread. The DOL does remind employers that, if the employee is seeking unpaid leave under the FMLA, those rules on documentation still apply.
Finally, in FAQ #93, the DOL states that leave under FFCRA is not available simply because school is closed for the summer or any other non-COVID-19 related reason. However, employees are entitled to leave if their childcare provider or summer camp program are not available for a COVID-19 related reason.
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