DOL Offers Additional Guidance for FFCRA

With just over seven months until the law expires, federal officials continue to provide guidance about the Families First Coronavirus Response Act (FFCRA) and the specifics of paid leave obligations for employers.

The U.S. Department of Labor (DOL) in mid-May added sections to the question-and-answer portion of its page dedicated to the new federal paid leave law, which went into effect in early April and expires at the end of 2020.

For a refresher on the FFCRA, check out a previous Employment Law News blog.

Below, we’ll run down the new DOL guidance on the FFCRA.

Enforcement

Following a period of education for employers, the DOL announced that enforcement of the FFCRA is now in place.

Should an employer be found in violation of the FFCRA, the employee can recover the entire amount owed, according to the new guidance. Remember, however, that caps are in place on what an employee is due under the FFCRA for both paid sick leave and family and medical leave.

Independent Contractors

The DOL’s new guidance also clarifies that independent contractors who are domestic workers are not entitled paid leave unless they are considered a full-time employee (so long as the qualifying conditions are met).

That means part-time landscapers, babysitters and others do not fall under the paid leave portion of the FFCRA. The DOL says:

As a rule of thumb, but not ultimately determinative, if you are not required to file Schedule H, Household Employment Taxes, along with your Form 1040, U.S. Individual Income Tax Return, for the amount you pay a domestic service worker because the worker is not your employee for federal tax purposes, then the worker is likely not economically dependent upon you and you are likely not the worker’s employer under the FLSA. 

Temporary Employees

Regarding temporary employees, the FFCRA guidance is based on the 500-employee threshold:

A temporary staffing agency is not required to provide employees with paid sick leave or expanded family and medical leave because it has more than 500 employees. In contrast, the second business where you are placed will generally be required to provide its employees with paid sick leave or expanded family and medical leave because it has fewer than 500 employees.

Whether a second business is required to provide an employee with paid sick leave or expanded family and medical leave depends on whether it is the worker’s joint employer. Should the second business directly or indirectly exercise “significant control” over the terms and conditions of the employee’s work, then it is considered a joint employer and must provide the employee with paid sick leave or expanded family and medical leave.

However, if the second business does not directly or indirectly exercise that control, then it is not considered the worker’s employer and so is not required to provide leave. The DOL defines that control as:

• Exercises the power to hire or fire
• Supervises and controls schedules or conditions of employment
• Determines rate and method of pay
• Maintains employment records

The DOL further outlines the guidance in this section:

“If the second business provides you with paid sick leave as your joint employer, the temporary staffing agency is prohibited from discharging, disciplining, or discriminating against you for taking such leave, even though it is not required to provide you with paid sick leave. Similarly, if the second business provides you with expanded family and medical leave as your joint employer, the temporary staffing agency is prohibited from interfering with your ability to take leave and from retaliating against you for taking such leave, even though it is not required to provide you with expanded family and medical leave.”

Working from Home Considerations

If employees are forced to work from home, they may qualify for paid family leave so long as they can confirm that they are unable to work because of the closure of a child’s school or daycare.

However, employers would be able to ask about the circumstances and why they would be unable to work from home when they previously had been able to.

Also, if the school or childcare closure is not related to COVID-19, the FFCRA does not apply.

Documentation Requirements

While the DOL previously provided guidance on documentation requirements related to the FFCRA, it has now afformed that additional documentation beyond the initial notice regarding a coronavirus-related medical appointment is not required.

The guidance dovetails with reopening plans for employers, as federal officials look to giver both employers and their workers more leeway as part of efforts to reopen safely.

Conclusion

While every state in the U.S. has begun to ease restrictions on businesses, the impacts of the FFCRA will continue to be felt until Dec. 31, 2020.

Employers should also take note of new paid leave laws, or expanded laws, in response to COVID-19.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.