DOL updates FFCRA paid leave FAQs, May 2020

The U.S. Department of Labor (DOL) has updated its frequently asked questions on paid leave under the Families First Coronavirus Response Act (FFCRA). The DOL added questions #89 to 93. As we previously reported, the FFCRA applies to employers with fewer than 500 employees. These new FAQs address COVID-19 leave questions related to domestic service workers, temporary staffing workers, teleworkers with child care needs, employees seeking a medical diagnosis, and summer school closures. We’ve highlighted the key issues of interest to Vigilant members below.

Using a staffing agency: If you have fewer than 500 employees and you contract for temporary workers with a temporary staffing agency that has more than 500 employees, you may have to provide those workers with paid leave depending on whether you’re a joint employer for purposes of the federal Fair Labor Standards Act. To determine if you’re a joint employer, evaluate whether you directly or indirectly exercise significant control over the terms and conditions of the temporary worker’s work. If you do, then you’re a joint employer and must provide paid leave under the FFCRA to eligible workers. The DOL would consider whether you exercise the power to hire or fire the worker, supervise and control the worker’s schedule or conditions of employment, determine the worker’s rate and method of pay, and maintain the worker’s employment records. The temporary staffing agency is prohibited from discharging, disciplining, discriminating, or retaliating against a worker for taking paid leave under the FFCRA, even if the staffing agency isn’t required to provide the worker with the paid leave.

Child care: The DOL explains what to do when employees have been teleworking from home with their child but now request leave to care for the child due to the child’s school or childcare closure related to COVID-19. You may require the employee to explain why they’re unable to continue teleworking and to provide appropriate documentation of the school or childcare provider’s closure or unavailability due to COVID-19. The DOL strongly cautions employers, however, to be careful this inquiry doesn’t turn into an unlawful denial of leave under the FFCRA. There may be legitimate reasons for the change in circumstances. For instance, it’s possible the employee’s spouse was caring for the child and now is returning to work, or the employee found that teleworking wasn’t effective while trying to tend a toddler.

Time off while seeking a medical diagnosis: You may seek information from an employee who claims to suffer from COVID-19 symptoms and wants to take leave to seek a medical diagnosis; however, such information is limited to a list of symptoms and the date for the test or doctor’s appointment. You cannot require the employee to provide further documentation. The DOL did note, however, that you may require additional documentation if the employee later takes unpaid leave under the federal Family and Medical Leave Act (FMLA) or takes any other available paid leave.

Summer vacation school closures: An employee cannot take leave under the FFCRA when the child’s school has closed for summer break or any other reason unrelated to COVID-19. However, the employee may take leave when the child’s summer care provider, including camps and other programs, is closed or unavailable for a COVID-19 related reason. If an employee wants to use paid leave for child care purposes but you know the child’s school has closed for summer break, you may need to get an updated leave request form or statement from the employee.

Tips For employers: If you need help evaluating leave requests under the FFCRA, contact your Vigilant Law Group employment attorney. To communicate leave rights under the FFCRA, tailor our Model Policy, Families First Coronavirus Response Act Policy, and display the FFCRA poster.