By Katherine L. Wood, Esq.
The initial flurry of requests for Families First Coronavirus Response Act (“FFCRA”) leave may have passed, but as New York businesses make plans to reopen, we are likely to see new situations where parents with school-aged children may request leave under the FFCRA. For example, with schools’ summer break right around the corner, do employers need to provide FFCRA leave for employees whose children were previously occupied by tele-learning during the school day?
The United States Department of Labor (“DOL”) addressed this question and provided guidance on the following issues in its last installment of Questions and Answers:
- Childcare leave and schools’ summer break;
- Changes to an employees’ childcare situation, particularly while teleworking;
- Supporting documentation that can be requested from employees who have requested leave due to experiencing symptoms of COVID-19;
- Domestic service workers, such as landscapers, cleaners, and in-home childcare; and
- Joint employers, particularly temporary placement agency employees who have been placed at business.
The DOL’s guidelines, including the recently updated guidance discussed here, can be found at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#89.
Schools’ Summer Break
While schools in New York State have been distance learning for weeks now, summer is approaching, and tele-learning will come to a stop. Employers may find some employees requesting FFCRA leave because the employees’ children are on summer break and no longer occupied during the workday.
The DOL guidance states that FFCRA leave is not available for employees whose children’s schools may be closed for summer break. Under the FFCRA, the employee’s childcare provider must be unavailable for reasons related to COVID-19. Since summer break is unrelated to COVID-19, it is not a qualifying reason for FFCRA leave. However, if the employee relies on sending their children to camp or other childcare programs during the summer, and those summer programs are closed due to COVID-19, the employee may qualify for FFCRA leave.
Changes to Employees’ Childcare
While schools have been distance learning, many employees have been teleworking while caring for their children. Although an employee may have productively worked from home and handled childcare, the new DOL guidance reminds employers to be mindful that their employees’ childcare situations may change over the course of the pandemic. For example, some employees may find that they cannot adequately care for their children while teleworking, and thus require FFCRA leave.
If an employee has been teleworking and caring for his or her children, and now requests FFCRA leave to care for the children, the employer can require the employee to submit, orally or in writing, the qualifying reason for the leave. The employer may request supporting documentation asking about changes in childcare circumstances, however, this must be done mindfully as such information could lead to a future determination that the employee’s leave was denied on a discriminatory basis.
Employers should keep in mind they may lawfully discipline employees who are found to have unlawfully taken FFCRA leave, such as taking childcare leave when the employee has no children.
Permissible Requests for Documentation from Employee Taking Leave Due to Symptoms of COVID-19
When employees inform their employer that they require FFCRA leave due to symptoms of COVID-19, employers may only request that the employee: (1) identify his or her symptoms and (2) advise the employer of the date for his or her doctor’s appointment or COVID-19 test. Employers may not require further documentation or certification of diagnosis or treatment from a health care provider. The DOL advises that this is an intentional requirement aimed to stop the spread of COVID-19.
However, if the employee is seeking unpaid FMLA leave rather than FFCRA leave, or if the employee is taking multiple types of leaves concurrently, the employer may request any documentation that is permissible under the FMLA or laws governing the other concurrent leave.
Domestic Service Workers
In certain circumstances, individuals who hire domestic workers, such as landscapers, cleaners, or in-home childcare workers may have to provide those workers with FFCRA leave, regardless of whether the hiring individual is considered an employer for tax purposes. The test to determine whether someone who hires domestic services workers must provide FFCRA leave is whether the hiring individual is an employer under the Fair Labor Standards Act (“FLSA”).
To determine whether a hiring individual is an employer of a domestic worker under the FLSA, the new DOL guidance states, “[i]f domestic service workers are economically dependent on you for the opportunity to work, then you are likely their employer under the FLSA and generally must provide [FFCRA] leave to eligible workers.” Such an example of a situation where a domestic service worker is the individual’s employee is a nanny who cares for the individual’s children as a full-time job, follows the individual’s precise directions while working, and has no other clients.
Individuals who are not employers under the FLSA are those who hire domestic service workers, and those workers assist on a project-by-project basis, control the manner in which they perform work, use their own equipment, set their own hours and fees, and have several customers. Examples of such domestic workers include handymen who perform sporadic tasks and day care providers who care for children for several clients in their own home.
Determining whether an individual who hires domestic service workers is an employer under the FLSA is extremely fact specific and can be complex. We recommend consulting with experienced labor and employment law counsel prior to making any determination as to whether or not you are considered an employer who must provide FFCRA leave to domestic service workers.
Joint Employers: Temporary Placement Agency Employees Who Have Been Placed at a Second Business
Generally, a temporary placement agency must provide its employees with FFCRA leave provided that the agency has fewer than 500 employees. If the temporary placement agency has more than 500 employees, the agency does not need to provide FFCRA leave. However, if an such an employee is also placed at a second business, does that second business need to provide FFCRA leave?
The DOL tells us that the answer to this question depends on whether the second employer is a joint employer of that employee. The second business may be a joint employer if it directly or indirectly exercises significant control over the terms and conditions of your employment. To determine whether the second business has significant control, the following factors should be considered: the power to hire and fire, supervision, control of schedule or conditions of employment, determines rate and method of pay, and maintenance of an employment record. Similar to the discussion of FLSA employers above, the joint employer analysis is complex and fact specific. We recommend consulting with experienced labor and employment law counsel if you believe your business may be a joint employer.
If your business is a joint employer with a second business, keep in mind that you cannot discharge, discipline, or discriminate against employees for taking FFCRA leave with the second business, even if your business is not obligated to provide FFCRA leave.