The Families First Coronavirus Response Act (FFCRA) has been in effect for nearly six weeks and, as practical challenges with interpreting and implementing the Act surface, the Department of Labor (DOL) continues to update its informal guidance in piecemeal fashion. On May 12, 2020, the DOL added five additional questions and answers to its FFCRA FAQs page:

• If the DOL brings an enforcement action against an employer on an employee’s behalf for failing to provide FFCRA leave, the employee may recover the entire amount due under the FFCRA, which is the greater of the employee’s regular hourly rate or the applicable minimum wage, subject to statutory caps (a maximum of $511/day for certain qualifying reasons, or two-thirds the employee’s regular rate, up to $200/day for other qualifying reasons). Despite confusing statutory language, the employee is not limited to recovery of only the applicable minimum wage if their regular rate of pay is higher.

• If a domestic worker, such as a landscaper, cleaning professional, or childcare provider, seeks paid leave under the FFCRA, the employing entity may need to provide paid leave if the worker is an employee, but does not need to do so if the worker is an independent contractor. That is, if a domestic worker is economically dependent on the job and follows precise directions while working and has no other clients (such as a full-time, in-home nanny), then the beneficiary of the labor is an employer and is required to provide FFCRA leave if other eligibility requirements are met. On the other hand, if the worker is an independent contractor with multiple clients, uses his or her own equipment, controls the hours and manner of his or her work, and is in business for him/herself, then the beneficiary of the labor is a customer and not required to provide FFCRA leave to the worker. The DOL offered a helpful (but non-determinative) rule of thumb: If you are required to file a Schedule H, Household Employment Taxes form, along with your Form 1040 for the amount paid to a domestic service worker, and the worker is economically dependent upon you for the opportunity to work, you probably are required to provide paid leave under the FFCRA.

• An employee working for a temporary placement agency with 500 or more employees and who is placed at a business/client with fewer than 500 employees is ineligible for FFCRA leave from their payroll employer (the temp agency), but may be eligible for FFCRA leave from the client for whom they are rendering services if it is a joint employer with the staffing company. If the business/client directly or indirectly exercises significant control over the terms and conditions of the employee’s work, then it is a joint employer and must provide FFCRA leave. Factors to be considered in this analysis are whether the client exercises the power to hire/fire the employee, supervises his or her schedule or conditions of employment, determines rate of pay, and maintains employment records; however, no one factor is dispositive. Notably, even though the temporary staffing agency in this example is not required to provide paid leave under the FFCRA, the DOL opined it is prohibited from interfering in the employee’s ability to take leave and from retaliating against the employee for taking leave administered and paid for by the joint employer/client.

• The DOL addressed the possibility that employees who have been effectively teleworking for weeks or even months, such as during government-mandated closure orders, may request time off for childcare and claim that they are unable to telework. To qualify for the childcare paid sick and extended paid family leave provisions of the FFCRA, an employee must certify he or she is unable to work or telework due to the qualifying reason – here, childcare due to school/daycare closures. The DOL cautioned that past ability to telework may not be dispositive, as the employee’s spouse or co-parent may have been available to provide childcare but no longer is able to do so, but employers can ask employees to provide a qualifying reason and explain any changed circumstances why they are now unable to telework. Nonetheless, the DOL urged “caution” in seeking details regarding the changed circumstances lest the answer be viewed as having played an impermissible role in the employer’s decision-making.

• The DOL’s FFCRA regulations were silent regarding the type of documentation an employer may require of employees using paid sick leave to seek a medical diagnosis of COVID-19. Today’s informal guidance states that employers may require the employee to identify his or her symptoms and provide the date on which they are being tested or seen at a doctor’s appointment, but may not require further documentation or certification that the employee sought diagnosis or treatment from a health care provider. The DOL acknowledges that the minimal documentation required is intentional to encourage employees seeking care to slow the spread of the virus. (Serious health condition certification requirements continue to apply to non-FFCRA FMLA leave requests.)

• Finally, the DOL clarified that FFCRA paid sick and emergency FMLA leave are not available if school/daycare is closed solely for a reason that is not related to COVID-19. If the child’s care provider is closed for a COVID-19 related reason, FFCRA leave may apply, but emergency paid sick and family leave may not be used simply because schools and daycares close for regularly scheduled summer break.

The FAQ update continues the DOL’s pattern over the past two months of releasing informal guidance in small doses. We expect the practice to continue as implementation challenges come to the Department’s attention in the coming weeks and months, and we will update the blog as it does so.