Summer is Coming: You Know Nothing About COVID-19 Paid Leave

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Are employers required to provide paid leave to employees with child care issues during Summer break?

Under the Families First Coronavirus Response Act (“FFCRA”) employees are entitled to paid leave if their child’s school is closed because of COVID-19.  The exact language of the regulation is:

The Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19 ….

29 C.F.R. § 826.20(a)(v)(emphasis added).  Well, what happens during a school’s regularly-scheduled Summer Break?

Employers might be tempted to deny paid leave because schools are no longer closed “for reasons related to COVID-19.”  I strongly recommend you do not take that approach.  The exception for child care is more expansive than just closure of a school.  Instead, employees are also entitled to paid leave if the child’s “Place of Care” or “Child Care Provider” is unavailable.  The definitions of those terms are expansive.

The term “Place of Care” means a physical location in which care is provided for the Employee’s child while the Employee works for the Employer. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.

29 C.F.R. § 826.10(a)(emphasis added).

So, if an employee would normally send their child somewhere for care during the Summer, and that place is closed because of COVID-19 concerns, they are still entitled to paid leave.

Plenty of employees also rely upon friends and family to provide child care during the Summer.  Those friends and family fall within the definition of “Child Care Provider”:

The term “Child Care Provider” means a provider who receives compensation for providing child care services on a regular basis. The term includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under State law …. Under the Families First Coronavirus Response Act (FFCRA), the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.

29 C.F.R. § 826.10(a)(emphasis added). So, if an employee would normally rely upon a family member or friend for child care during the Summer, but that person is unavailable because of COVID-19, the employee is still entitled to paid leave.

The best approach to resolving Summer Break issues is to have a discussion with your employee.  How do you normally care for your child during the Summer?  What is different this year from previous years?  If the employee provides a COVID-19 related explanation for lack of child care, they are probably entitled to paid leave.  In that instance, employers have obligations under the FFCRA to document the reasons for Summer leave.

Here is link to FFCRA regulations: FFCRA Regs. If you have further questions on child care and COVID-19 paid leave, contact your attorney.

DOL’s COVID-19 Paid Leave Regulations: 10 Issues for Employers

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Employers still have plenty of questions regarding their obligations to provide paid leave related to COVID-19.

By now, most employers know that Congress passed the Families First Coronavirus Response Act (“FFCRA”) which mandated paid leave for employees affected by COVID-19.  In summary, the FFCRA contains two acts.  First, the Emergency Family and Medical Leave Expansion Act (“EFMLA”) requires up to 12 weeks of leave for child care issues related to COVID-19.  Second, the Emergency Paid Sick Leave Act (“EPSLA”) requires 80 hours of paid sick leave because of issues arising from a diagnosis/symptoms of COVID-19 or child care issues.  Here’s a link to a post more-thoroughly discussing the EFMLA and EPSLA: EFMLA and EPSLA

In the days following passage, the United States Department of Labor (“DOL”) weighed-in with a set of Questions and Answers related to paid sick leave.  Here’s a link to that guidance: DOL Q&A. Not to be outdone, the Internal Revenue Service also provided its own Questions and Answers:  IRS Q&A.

Importantly, those Questions and Answers were not binding statements of the law.  Paid leave required by the FFCRA became mandatory beginning on April 1, 2020.  On that same day, DOL issued interim regulations and today placed those regulations into the Code of Federal Regulations (“C.F.R.”).  Employers can now rely upon those regulations when making decisions related to paid leave. Here’s a link to the published regulations: Published Paid Leave Regs.

Here are 10 issues of importance in the regulations:

  1. A “Child Care Provider” Includes Free Care by Family Members and Friends.  Under the FFCRA, an employee is eligible for leave if “the child care provider of such son or daughter is unavailable” due to COVID-19 reasons.  The FFCRA defined “child care provider” as “a provider who receives compensation for providing child care services on a regular basis ….”  Some commentators believed that this definition prevented employees from receiving paid sick leave if they relied upon free child care from family members or friends.  DOL dispensed with that argument by defining “child care provider” so that an “eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.”  29 C.F.R. § 826.10
  2. What is “telework?”  The FFCRA makes clear that an employee is only entitled to paid leave if he/she is unable to work, or telework, because of qualifying reason.  But, the FFCRA did not define “telework.”  The regulations clarify that telework is “work the Employer permits or allows an Employee to perform while the Employee is at home or at a location other than the Employee’s normal workplace.” 29 C.F.R. § 826.10
  3. What “symptoms” qualify for leave? One way for an employee to qualify for 80 hours of leave under the EPSLA is if they are “experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider.”  The regulations clarify than any one of four (4) symptoms suffice: (a) fever; (b) dry cough; (c) shortness of breath; or (d) any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention.  See 29 C.F.R. § 826.20(a)(4).
  4. “Caring for an individual” is expansive. Another way for an employee to qualify for 80 hours of leave under the EPSLA is if they are “caring for an individual” who is subject to a quarantine order or directed to self-quarantine.  The regulations provide an expansive definition of the “individuals” who may be cared for: (a) an employee’s immediate family member; (b) a person who regularly resides in the employee’s home; or, (c) a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person. See 29 C.F.R. § 826.20(a)(5).
  5. “Caring for a son or daughter” is slightly restricted.  Under both the EFMLA and EPSLA, an employee may receive leave if they are “caring for a son or daughter” whose school or child care provider is unavailable because of COVID-19.  The regulations make clear that an employee is only entitled to that leave “only if no other suitable person is available to care for the Son or Daughter during the period of such leave.”  29 C.F.R. §§ 826.20(a)(8) and 826.20(b).
  6. Taking paid leave does not affect FLSA overtime exemptions. As a general rule, the Fair Labor Standards Act (“FLSA”) allows employers to exempt salaried employees from overtime if they perform certain executive, administrative or professional duties. Another general rule of the FLSA requires that an exempt, salaried employee must be paid his/her entire week’s salary if he/she works any part of the work week.  Many employers and commentators were worried that payment of sick leave under the FFCRA might affect FLSA exemptions.  The regulations completely resolve those worries: “The taking of Paid Sick Leave or Expanded Family and Medical Leave shall not impact an Employee’s status or eligibility for any exemption from the requirements of” the FLSA. 29 C.F.R. § 826.20(c).
  7. FMLA leave is limited to 12 weeks — paid or unpaid.  The EFMLA expands the “regular” FMLA.  The regular FMLA provides 12 weeks of unpaid leave to qualifying employees.  Many employers wondered whether the EFMLA gave an additional 12 weeks.  DOL answered that question with an emphatic: “No.”  So, if an employee used 6 weeks of unpaid, “regular” FMLA earlier this year, they will only be entitled to 6 weeks of Emergency Family and Medical Leave.  See 29 C.F.R. § 826.23.
  8. The exemption for “health care providers” and “emergency responders” is broad.  The FFCRA allows employers of “health care providers” and “emergency responders” to exempt those employees from paid leave.  The regulations bring a wide-range of employees within those definitions.  “Health care provider” includes “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school,  local health department or agency, nursing facility, retirement facility, nursing home,  home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.”  It also includes people who provide support services to such facilities.  “Emergency responder” includes: military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose
    work is necessary to maintain the operation of the facility.” See 29 C.F.R. § 826.25(c).
  9. Small business may exempt themselves from paid leave.  An employer with fewer than 50 employees can be exempt from the FFCRA’s requirements if an authorized officer of that employer determines and documents that one of three criteria exist: (a) paid leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; (b) the absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized
    skills, knowledge of the business, or responsibilities; or, (c) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and
    place needed, to perform the labor or services provided by the employee(s) requesting leave, and these labor or services are needed for the business to operate at a minimal capacity.
  10. You must document reasons for paid leave. Both the IRS and the DOL have mandated documentation to support any paid leave given to an employee.  Every employee’s request must be supported by documentation containing: (a) the employees name; (b) the dates for which leave is requested; (c) the qualifying reason for the leave; and, (d) an oral or written statement that the employee is unable to work because of the qualifying reason.  Additionally, if an employee, or somebody they care for, has been advised by a health-care provider to self-quarantine, the employee must provide the name of the health care provider.  If a quarantine/isolation order has been issued, the employee must provide the name of the government entity issuing the order.  For child care, the employee must also provide:
    1. The name of the son or daughter cared for;
    2. The name of the school, place of care, or child care provider that has closed or is unavailable; and,
    3.  A representation that no other suitable person will be caring for the son or daughter during the period for which leave is taken.

There are many more issues addressed by the regulations.  If you have any particular questions about the FFCRA, you should consult with an employment attorney.