DOL Updates to COVID-19 FMLA Related FAQs

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The Department of Labor (DOL) has once again updated its frequently asked questions to clarify certain employee rights and employer obligations under the Families First Coronavirus Response Act (the Act). Here are the highlights of the new guidance:

Can an employee now take paid sick leave or expanded family and medical leave to care for a child, even though the employee has been teleworking with a child at home for multiple weeks?

Yes. The fact that an employee has been teleworking despite having his or her child at home does not mean that the employee cannot now take leave if the child’s school is closed for a COVID-19 related reason. 

For employees who now want to take paid sick leave and expanded family and medical leave to care for a child, can employers ask why they are now unable to work or if they have pursued alternative childcare arrangements?

Yes. Employers may require the employee to provide the qualifying reason he or she is taking leave, to submit an oral or written statement that the employee is unable to work because of this reason, and to provide other documentation outlined in section 826.100 of the DOL’s rule applying the Act. 

Can employees still be disciplined for misrepresenting their need to take leave?

Yes. Employers can still discipline an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s child when the employee, in fact, has no child and is not taking care of a child.

Can employees take paid sick leave or expanded family and medical leave to care for their children because their school is closed for summer vacation?

No. Paid sick leave and emergency family and medical leave are not available for this reason if the school or childcare provider is closed for summer vacation, or any other reason that is not related to COVID-19. But the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other program in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

If an employee takes leave to seek a medical diagnosis related to COVID-19, what documentation could an employer require from the employee to show efforts taken to obtain a diagnosis?

An employer may require the employee to identify his or her symptoms and a date for a test or doctor’s appointment. But the employer may not require further documentation or similar certification that treatment was sought from a health care provider in order for the employee to take paid 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.

Note, though, that if an employee took unpaid leave under the FMLA, the FMLA’s traditional documentation requirements, which are different, apply. Further, if the employee is concurrently taking another type of paid leave, any documentation requirements relevant to that leave still apply.  

Are temporary staffing agencies with more than 500 employees required to provide their workers with paid sick leave or expanded family and medical leave?

No. A temporary staffing agency is not required by the Act to provide workers with paid sick leave or expanded family and medical leave if it has more than 500 employees.

What if a temporary staffing agency with more than 500 employees places a worker at a business with less than 500 employees? Will the second business be required to offer the worker paid sick leave or expanded family and medical leave?

It depends. Whether the second business must provide the worker with paid sick leave or family and medical leave depends on whether it is a joint employer. If the second business directly or indirectly exercises significant control over the terms and conditions of the worker, then it is a joint employer and must provide the worker with paid sick leave or expanded family and medical leave. If the second business does not directly or indirectly exercise such control, then it is not an employer and is not required to provide the worker with such leave. 

Can a staffing agency discipline a worker for taking the provided sick leave that a joint employer offers?

No. If the second business provides a 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 such leave, even though it is not required to provide the worker with paid sick leave.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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