School’s Out for Summer But Is FFCRA Leave? DOL Updates its FFCRA Q&As

On May 7, 2020, the U.S. Department of Labor (DOL) posted additional updates to its Families First Coronavirus Response Act: Questions and Answers (Q&As).  Among other topics, the DOL Q&As address temporary placement agencies, school closures, and documentation of paid sick leave requests.

Temporary Placement (Staffing) Agencies

Generally, staffing agencies with 500 or more employees are not covered employers under the FFCRA. Staffing agencies with less than 500 employees are covered employers.  Issues can arise when a staffing agency with 500 or more employees places employees with client companies that have fewer than 500 employees. According to question 90, the client company is required to provide paid sick leave or expanded family and medical leave depending on whether the staffing and client company are joint employers.

The DOL states that if the client company “directly or indirectly exercises significant control over the terms and conditions of your work, then it is your joint employer and must provide you with paid sick leave or expanded family and medical leave. If the [client company] does not directly or indirectly exercise such control, then it is not your employer and so is not required to provide you with such leave.” To determine joint-employer status, the DOL “would consider whether it exercises the power to hire or fire you, supervises and controls your schedule or conditions of employment, determines your rate and method of pay, and maintains your employment records. The weight given to each factor depends on how it does or does not suggest control in a particular case.”

Finally, the DOL cautions that:

if the [client company] provides you with paid sick leave as your joint employer, the temporary staffing agency is prohibited from discharging, disciplining, or discriminating against you for taking such leave, even though it is not required to provide you with paid sick leave. Similarly, if the [client company] second business provides you with expanded family and medical leave as your joint employer, the temporary staffing agency is prohibited from interfering with your ability to take leave and from retaliating against you for taking such leave, even though it is not required to provide you with expanded family and medical leave.

School Closures

Question 91

Many employees have been at home with their children and teleworking as a result of state stay-at-home orders. Some of those teleworking employees are now requesting paid sick leave or expanded family and medical leave. According to question 91, “[w]hile [an employer]  may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, [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.” The DOL further states:

The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason.

Finally, the DOL states that an employer is not prohibited “from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.”

Question 93

According to question 93, paid sick leave and expanded family and medical leave cannot be used when school is closed for summer vacation or other reasons unrelated to COVID-19, However, due to COVID-19, many summer child care programs have moved to online learning, and parents may face child care challenges. Accordingly, paid leave may be available if the employee’s summer child care provider (such as a camp, recreational program, or day care center) is closed due to a COVID-19 related reason.

The FFCRA provides tax credits to employers for qualified leave wages paid under the law. The Internal Revenue Service (IRS) has posted frequently asked questions (FAQs) regarding the necessary documentation to substantiate the employer’s eligibility for the tax credits. According to question 44, “[i]n the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable[.]” Question 44 seems to indicate that an employee would be required to provide a statement regarding the name of the child care provider that is unavailable for the summer.

Required Documentation for Paid Sick Leave

According to question 92, an employer “may require the employee to identify his or her [COVID-19] symptoms and a date for a test or doctor’s appointment.” However, an employer may not “require the employee to provide further documentation or similar certification that he or she sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms.” The DOL emphasized that “[t]he minimal documentation required to take this leave is intentional so that employees with COVID-19 symptoms may take leave and slow the spread of COVID-19.”

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.