As you know by now, the Families First Coronavirus Response Act (FFCRA) provides for Paid Sick Leave and for Expanded Family and Medical Leave for various COVID-19 related events. Generally speaking, the FFCRA applies to employers that employ fewer than 500 employees. We have addressed this in significantly more detail in prior articles.

The Department of Labor (DOL) has issued FAQs on the Paid Sick Leave and the Expanded Family and Medical Leave and has updated them on a rolling basis. In the most recent additions, the DOL addressed the following topics.

Domestic Service Workers

FAQ No. 89 addresses domestic workers including landscaping, cleaning, and child care in your home and whether you may be obligated to provide them paid leave under the FFCRA.

Complications with Temporary Workers

FAQ No. 90 addresses the situation when a staffing agency of more than 500 employees (thus not covered by the FFCRA) places one of its employees at a customer’s business and that customer has less than 500 employees. Is the placed employee covered by the staffing agency’s policies or the customer’s policy with regard to the FFCRA? The analysis turns on whether the customer is a “joint employer.”

Teleworking Employees and Child Care; Schools Closed for Summer Vacation

FAQ No. 91 addresses the end-of-the-school-year question. “My employees have been teleworking productively … Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children …?”

FAQ No. 93 addresses summer vacation.

Reading these questions together gives employers some guidance. First, school being closed for the summer is not a qualifying reason under the FFCRA. Only those specific, enumerated reasons – all COVID-19 related – will qualify an employee for paid leave. (This would seem to include summer camps that have been cancelled for COVID-19 reasons.) Second, just because a person may not have needed leave yesterday does not mean the person does not need leave tomorrow. Follow the rules on what you can and cannot ask to verify the leave, but an employee’s situation may have changed and, thus, their need for leave may have changed, too. As with all employment decisions, do not jump to conclusions. For example, an employee may have been able to telework with children because a second adult may have been in the home. That situation may have changed, and there is no longer an adult there during working hours to provide the child care.

Leave to Seek Medical Diagnosis

One of the reasons an employee may take Paid Sick Leave is to seek a medical diagnosis of COVID-19 when he is experiencing COVID-19 symptoms. FAQ No. 92 addresses the documentation an employer may request to verify this type of leave, such as requiring the employee to identify his symptoms and a date for a test or doctor’s appointment. But employers should not require further documentation from the employee that he actually saw a doctor; these requirements are minimal because the intention is that employees stay home and slow the spread of the virus.

As is evidenced by the rolling nature of the DOL’s FAQs, employers will continue to face new and varied situations in the coming months as they grapple with COVID-19 and the FFCRA. When you are confronted with such a situation, you may want to check these resources or consult with legal counsel.

By Kristen L. Brightmire, kbrightmire@dsda.com