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Though many people’s focus has shifted from the COVID-19 pandemic the Coronavirus continues to affect individuals in the United States and around the world. This means the Family First Coronavirus Response Act (FFCRA) continues to have an important role in the lives of HR professionals. As a quick refresher, the FFCRA went into effect on April 1, 2020. It contains the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, which requires employers with under 500 employees to provide employees with paid leave for certain COVID-19 related reasons.

Since the FFCRA’s inception nearly three months ago, the United States Department of Labor has consistently updated its guidance. As restrictions are lifted, and businesses reopen, employers should continue familiarizing themselves with all the intricacies and nuances that come with the application of the FFCRA. Here is a breakdown of some of the most recent DOL guidance.

How much can an employee recover in an enforcement action?

If the DOL commences an enforcement action on behalf of an employee, the employee may recover the full amount of compensation due to them—not just the federal minimum wage. A violation of the FFCRA is considered a failure to pay the federally mandated minimum wage, so an employer will be liable as they would under the Fair Labor Standards Act (FLSA). The FLSA requires the employee be paid at their regular rate of pay.

How does FFCRA leave work for employees who are placed through a temporary staffing agency?

Employers who use workers provided by a staffing agency may have to provide FFCRA leave to the workers if they are considered a “joint employer.” This is true even if the staffing agency has over 500 employees and is not covered by the FFCRA. The test for determining whether an employer is a joint employer is whether it directly or indirectly exercises significant control over an employee’s work. To decide this, the DOL looks at whether the employer can hire or fire the employee, supervises and controls the employee’s schedule or conditions of employment, determines the employee’s method of pay, and maintains the employee’s employment records. Employers who use workers from staffing agencies should be aware of their status as a joint employer and the obligations such a status entails.

If an employee who has been working from home with their children suddenly wants to take leave to care for their children out of the blue, can I deny it?

It may seem strange to provide childcare leave to employees who have been working from home successfully while caring for their child(ren). However, this does not mean you can automatically deny such requests. You can certainly require the employee provide you with the reason they are qualified for leave and certain written documentation supporting their request, including: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID–19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave. You can also ask the employee to note any changed circumstances in their statement as part of explaining why the employee is unable to work, but you should exercise caution in doing so, since it may increase the likelihood that any decision denying leave based on that information is a prohibited act. Regardless of the employee’s change in circumstances, the fact that your employee has been teleworking despite having their children at home does not mean that the employee cannot now take leave to care for their children whose childcare provider is unavailable for a COVID-19 related reason.

What documentation can I require from my employee if they claim to have symptoms of COVID-19 and are seeking a medical diagnosis?

To qualify for leave for this purpose under the FFCRA, you can require that the employee identify their symptoms and the date of their test and/or doctor’s appointment. Unfortunately, this is all you can ask—requesting additional documentation or a certification that the employee sought a diagnosis or treatment from a healthcare provider is prohibited. This minimal documentation requirement is deliberate so that employees with COVID-19 symptoms take leave and slow the spread of COVID-19.

Can I prohibit employees from taking childcare leave under the expanded FMLA once school is out for the summer?

It depends on the reason the employee needs leave. Leave under the expanded FMLA is only available to employees who need to care for their children because their regular childcare provider is no longer available due to a COVID-19 related reason. Closing for the summer is not COVID-19 related. However, if the employee shows that their childcare provider for the summer—such as a daycare or day camp—is unavailable due to COVID-19, the employee may still qualify for the expanded FMLA leave.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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