The U.S. Department of Labor (“DOL”) continues to provide additional guidance regarding the Families First Coronavirus Act (“FFCRA”). The DOL recently updated its FFCRA Questions and Answers in regard to employees entitled to FFCRA benefits and the required documentation for such leave.
Below are the key takeaways for employers covered by the FFCRA. Generally, the questions clarify when employees are entitled to paid leave. The updated guidance can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
Individuals Entitled to FFCRA Benefits
The new guidance makes it clear that FFCRA benefits only need to be paid to employees and not independent contractors. For example, if a domestic service worker is economically dependent on you for the opportunity to work, then you are likely their employer under the Fair Labor Standards Act (“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.
On the other hand, if a domestic service worker is not economically dependent on you and instead are essentially in business for themselves, you are their customer rather than their employer for FLSA purposes. Accordingly, you are not required to provide such domestic service workers with paid sick leave or expanded family and medical leave. An example of a domestic service worker who is not economically dependent on you is 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.
Additionally, the new guidance makes it clear that an employee that “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, an employee may not have been able to care effectively for the children while teleworking or, perhaps, the 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.
The employee will still be required to provide a signed statement containing the following information:
(1) The employee's name;
(2) The date(s) for which leave is requested;
(3) The COVID-19 qualifying reason for leave;
(4) A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason;
(5) The name of the son or daughter being cared for;
(6) The name of the school, place of care, or child care provider that has closed or become unavailable; and
(7) A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or expanded family and medical leave.
An important thing to note is that the new guidance limits the documentation an employer can request from someone with symptoms of COVID-19 seeking medical treatment. An employer may require an employee “to identify his or her 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.” Therefore, an employer is not allowed to confirm that the employee did in fact seek medical treatment.
Lastly, the DOL provided guidance related to taking leave for child care once schools are closed for summer vacation. In summary, the employee will no longer be able to rely on the fact that schools are closed to take the extended FMLA leave. Instead, the employee will need to show that the child’s care provider during the summer (e.g. a camp or other program) is unavailable due to the COVID-19 epidemic.
Employees provided by Temporary Staffing Agencies
Generally, an employee who is employed by a temporary staffing agency which has greater than 500 employees will not be entitled to FFCRA benefits (paid sick leave or expanded family and medical leave). However, the business that borrows an employee from that same temporary staffing agency will generally be required to provide its employees with paid sick leave or expanded family and medical leave if it has fewer than 500 employees. Therefore, assuming the borrowing employer has fewer than 500 employees and exercises sufficient control over the terms and conditions of the employee’s employment to be a joint employer, the borrowing employer must provide FFCRA benefits to the borrowed employee.
The attorneys at Reno & Zahm LLP continue to monitor COVID-19 related statutes, rules, regulations and guidance, and we will endeavor to provide regular updates when warranted. Please contact us with any questions. We are here to help you make it through these challenging times.