By Pension and Benefits Editorial Staff
The DOL’s Wage and Hour Division has updated its series of questions and answers under the Families First Coronavirus Response Act (FFCRA) with new Q&As 89-93. The five additions addresses leave questions related to domestic service workers, temporary staffing workers, teleworkers with child care needs, employees seeking medical diagnosis, and summer school closures.
Domestic service workers. A person who hires workers to perform tasks at their home (such as landscaping, cleaning, and child care) may be required to provide paid sick leave or expanded family and medical leave, depending on the type of relationship they have with domestic service worker, the WHD said in one of the Q&As. Under the FFCRA, those who are employers under the FLSA must provide paid sick leave or expanded family and medical leave, regardless of whether they are an employer for federal tax purposes.
Economically dependent. Where a person’s domestic service workers are economically dependent on them for the opportunity to work, the person is likely their employer under the FLSA and generally must provide paid sick leave and expanded family and medical leave to eligible workers. Examples include a domestic service worker who is a nanny who cares for the hiring person’s children as a full-time job, follows the person’s precise directions while working, and has no other clients.
Not economically dependent. In contrast, where the domestic service workers are not economically dependent on the hiring person and are essentially in business for themselves, the hiring person is their customer rather than their employer for FLSA purposes, and there is no obligation to provide the service workers with paid sick leave or expanded family and medical leave. Examples include handymen who work for the hiring person sporadically on a project-by-project basis, control the manner in which they perform work, use their own equipment, set their own hours and fees, and have several customers. Likewise, day care providers who work out of their house and have several clients are not economically dependent upon on the hiring person.
Third-party service provider. The WHD clarified that a person is not required to provide paid sick leave or expanded family and medical leave for workers who are employed by a third party service provider with which the person has contracted to provide specific domestic services.
Complicated, fact-specific. The question of economic dependence can be complicated and fact-specific, the WHD explained. "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." In this cases, the hiring person likely would not be required to provide paid sick leave and expanded family and medical leave.
However, if the worker is the person’s employee for federal tax purposes, requiring the filing of Schedule H for the worker with the person’s Form 1040, the person will need to determine whether the worker is economically dependent for the opportunity to work. If the worker is economically dependent upon the hiring person for the opportunity to work, then they are likely required to provide that worker with paid sick leave and expanded family and medical leave.
Remember sticky joint-employer issues? Where an employee of a temporary placement agency that has more than 500 employees is placed at a second business with fewer than 500 employees, are one or both entities required to provide leave to the worker? While the temporary staffing agency is not required by the FFCRA to provide any leave because it has more than 500 employees, the second business where the worker is placed generally to provide its employees with paid sick leave or expanded family and medical leave because it has fewer than 500 employees. But whether that second business must provide the worker placed there with paid sick leave or expanded family and medical leave depends on whether it is that worker’s joint employer.
Control over terms and conditions of employment. Where the second business directly or indirectly exercises significant control over the terms and conditions of the placed worker’s work, then it is a joint employer and must provide the placed worker paid sick leave or expanded family and medical leave. However, if the second business does not directly or indirectly exercise such control, then it is not the placed worker’s employer and thus is not required to provide leave.
To determine whether the second employer exercises such control, the DOL would consider whether it:
- Exercises the power to hire or fire the worker,
- Supervises and controls the worker’s schedule or conditions of employment;
- Determines the worker’s rate and method of pay; and
- Maintains the worker’s employment records.
The weight given each factor depends on how it does or does not suggest control in a particular case.
No retaliation or interference. The WHD division also pointed out that where the second business provides the worker with paid sick leave as a joint employer, the temporary staffing agency is prohibited from discharging, disciplining, or discriminating against the worker for taking the leave, even though it is not required to provide the worker with paid sick leave.
Similarly, if the second business provides the worker with expanded family and medical leave as a joint employer, the temporary staffing agency is prohibited from interfering with the worker’s ability to take leave and from retaliating against the worker for taking the leave, even though it is not required to provide the worker with expanded family and medical leave.
Teleworking employees and child care. In one of the Q&As, employees who have been teleworking with their children at home for four weeks now claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19. The employer wants to know if it can ask them why they are now unable to work or if they have pursued alternative child care arrangements.
Here, the employer may require employees to provide the qualifying reason for taking leave, submit an oral or written statement that the employee is unable to work because of this reason, and provide other documentation (outlined in Section 826.100 of the DOL’s rule applying the FFCRA). The WHD cautioned though, that while the employer may ask employees to note any changed circumstances in their statement as part of explaining why they are unable to work, it should exercise caution, "lest it increase the likelihood that any decision denying leave based on that information is a prohibited act."
There may be legitimate reasons. The fact that employees have been teleworking despite having children at home does not mean that they cannot now take leave to care for children whose schools are closed for a COVID-19 related reason. For example, employees may not have been able to care of the children effectively while teleworking. Or, employees may have decided to take paid sick leave or expanded family and medical leave to care for the children so that their spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19-related reason.
Discipline for misrepresentation. The WHD also noted that this does not prohibit the employer from disciplining employees who unlawfully take paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.
Leave to seek medical diagnosis. Where an employee claims to have symptoms of COVID-19 and is taking leave to seek a medical diagnosis, what documentation may an employer require to document efforts to obtain a diagnosis, and when can it be required? Here, the WHD advised that the employer may require employees to identify the symptoms experienced and a date for a test or doctor’s appointment. However, the employer may not require further documentation or similar certification that treatment was sought from a health care provider in order for employees to use paid sick leave for COVID-19 related symptoms. The minimal documentation required is intentional so that employees with symptoms may take leave and slow the spread of COVID-19.
FMLA and other types of leave. Note, though, that if an employee were to take unpaid leave under the FMLA, the FMLA’s documentation requirements are different and apply. Further, if the employee is concurrently taking another type of paid leave, any documentation requirements relevant to that leave still apply.
School closed for summer vacation. The last new Q&A clarifies that employees may not take paid sick leave and emergency family and medical leave where their children’s school or child care provider is closed for summer vacation, or any other reason not related to COVID-19. However, employees may be able to take leave where the childcare provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19-related reason.
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