DOL Issues Sixth Set of Families First Coronavirus Response Act FAQs and It's a Mixed Bag for Employers
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On May 11, the Department of Labor issued its sixth set of FAQs related to the FFCRA. You can find the FAQs here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#91
The new FAQs are a mixed bag, with a little bit of good and a little bit of not-so-good for employers.
FAQ No. 91 makes it clear that even if an employee has been successfully teleworking while staying at home to care for children whose schools have closed due to COVID-19, the employer must be very careful when asking the employee why they can no longer telework. In addition to requiring the employee to provide the previously known-basic information (name and age of child, name of school, that no other suitable person is available to care for the child…) an employer in this situation may only ask:
“…the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you 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 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.”
FAQ No. 2 explains an employer is limited in the documentation that it may require of an employee seeking FFCRA leave because the employee is suffering symptoms of COVID-19 and seeking a diagnosis.
“In order for your employee to take leave under the FFCRA, you may require the employee to identify his or her symptoms and a date for a test or doctor’s appointment. You may not, however, 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.”
It is not clear how the DOL intends to apply this standard in conjunction with the IRS’s requirement that an employer obtain a written request for such leave from the employee. (Refer to FAQ No. 44 of the IRS’s COVID-19 Related Tax Credit FAQs.)
FAQ No. 93 gives some guidance on how summer vacation is going to impact child-care leave under the FFCRA. The DOL very clearly states that an employee may not take FFCRA leave to care for a child whose school has closed for summer vacation.
No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19.
Unfortunately, the full answer is not so cut-and-dried.
However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.
Thus, whether or not an employee is eligible for FFCRA leave to care for a child during the summer vacation will need to be determined on a case-by-case basis.