The Department of Labor has issued new FAQs.
As most of you know, the U.S. Department of Labor has an ever-growing list of FAQs related to the Families First Coronavirus Response Act. The latest FAQs include guidance related to issues that are likely to dominate Human Resources departments this summer.
The new FAQs start at 89 and run through 93. I’ll take them in the DOL’s order, using the DOL’s numbering. The following is only a paraphrase and summary. You can read the real thing here.
89. Do I have to give FFCRA leave to my yard and household workers?
Yes, if they work for you exclusively (for example, a full-time nanny), in which case they would be your employees. No, if they have other clients besides you, or if they work for a company for which you are the customer — for example, a lawn maintenance or house cleaning service.
90. We’re a temporary agency that has 500 or more employees. If our employees are assigned to companies with fewer than 500 employees, what are the employees’ FFCRA rights, if any?
Your company does not have to comply with the FFCRA because you have more than 500 employees. The “client” company may or may not have to comply with respect to your employees. If the client is a “joint employer” with you, then it will have to give your employees FFCRA leave if they qualify. The client could be a joint employer if it has the authority to hire or fire your employees, “supervises and controls [their] schedule or conditions of employment, determines [their] rate and method of pay, and maintains [their] employment records.”
Although your company is not covered by the FFCRA, you would be prohibited from retaliating against your employees for taking FFCRA leave while on assignment at client companies that were covered.
91. My employees have been teleworking successfully since we all got sent home in March. Now that it’s summer, they want FFCRA leave to cultivate their sun tans — I mean, take care of their kids. But their kids have been out of school since March, and the employees were able to work! Can I ask what’s changed, and maybe deny the leave?
Maybe. You need to “exercise caution” in asking about changed circumstances, “lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” (I am not sure what the DOL is getting at here.) And even though your employees have been teleworking since March and seemed to be doing fine, it’s possible that they really haven’t done a good job with their dual responsibilities, or that a spouse or other caregiver was available to provide child care in the spring but is no longer available for the summer.
On the other hand, if the employee lies to get paid leave for child care — for example, the employee actually doesn’t have any kids or child care responsibilities — then you can take action against the employee.
92. What kind of documentation can I request when an employee wants FFCRA leave based on having symptoms of COVID-19 and seeking a medical diagnosis?
You can ask for the symptoms and the date of the doctor’s appointment. You can’t ask for anything else.
93. My employee’s kids’ school closed in March, with online instruction only. This Friday would have been the last day of school under normal circumstances. The employee has been teleworking but now wants to start taking “school-closing” FFCRA leave, at least on a part-time basis. I say the employee isn’t eligible for FFCRA leave as of Monday because school would have been out anyway. Am I right?
Kind of. You are right that the employee wouldn’t be entitled to FFCRA leave for school-closing-related reasons if school would have been out in any event. BUT if the kids’ summer child care or other summer program is closed (or a summer caregiver is unavailable) because of COVID-19, then the employee would still be entitled to FFCRA leave for the time that he or she couldn’t telework.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.