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Monday, May 11, 2020

Coronavirus Update 5-11-2020: The 6th(!) set of FAQs from the DOL on the FFCRA


Consider the following scenario.

An employee has been working from home productively and without issue since the state Shelter in Place order took effect. Now, however, he is requesting paid sick leave and expanded FMLA under the FFCRA to care for his children because their school is closed because of COVID-19. You want to: (a) ask the employee why he is unable to continue working from home or if he has pursued alternative child care arrangements; and (b) deny the leave request without a reasonable explanation.

If you carry through with your plan, will you violate the FFCRA?

According to the most recent FAQs published by the Department of Labor, the answer is yes.

For an employee requesting FFCRA leave because the employee is caring for his or her child because their school or place of care has been closed, or their child care provider is unavailable, due to COVID-19 precautions, the DOL only requires the employee to provide the following in support of the leave request:

  1. Employee’s name; 
  2. Date(s) for which leave is requested; 
  3. Qualifying reason for the leave; 
  4. Oral or written statement that the employee is unable to work because of the qualified reason for leave; 
  5. The name of the son or daughter being cared for; 
  6. The name of the school, place of care, or child care provider that has closed or become unavailable; and  
  7. A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes Paid Sick Leave or Expanded Family and Medical Leave.

That’s it. 

The DOL explains its prohibition on asking for additional confirming information as follows:

The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s 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.

In other words, if the employee represents that he or she is unable to continue working because his or her child(ren)'s school or place of care is closed, or childcare provider is otherwise unavailable, and that no other suitable person will be caring for the child(ren) (and provides the other identifying information), then you must grant the leave, no questions asked.

As the DOL also points out, you are not prohibited from disciplining or firing an employee who misrepresents the need for leave. But you cannot press the employee for additional information other than that which the FFCRA requires. And keep in mind, the DOL is watching, investigating, and fining.

* Photo by Jessica Lewis on Unsplash

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