DOL FFCRA Regulations: Definitions
The Department of Labor issued the long awaited Regulations yesterday. This blog focuses solely on some definitions that shed light into the purpose of the Act, and clarify some confusion. As you will see, some of the definitions provide insight as to the future conditions and duration of same:
DEFINITIONS
Child Care Provider is a provider who receives compensation for providing child care services on a regular basis. This includes:
Center based child care providers
Group home child care providers
Family child care providers
Other provides licensed by the state.
A Child Care Provider need not be compensated or licensed if they are a family member or friend. In other words, a Child Care Provider could be a neighbor who regularly watches a child.
Analysis
Employers must be cognizant of their employees’ child care needs. The FFCRA allows for an employee to take Emergency Family Medical Leave where, “the Child Care Provider of a son or daughter is not available due to a Public Health Emergency.” Based on the definition, if an employee’s neighbor or friend babysits their son or daughter on a regular basis, and that neighbor/friend can no longer watch the child due to COVID, then that employee may obtain Emergency Family Medical Leave.
Employer means an entity with less than 500 employees. A Joint Employer for the purposes of the Emergency Paid Sick Leave (EPSL) is established through the Joint Employer Analysis under the Fair Labor Standards Act (FLSA), and the Integrated Employer analysis under the Family Medical Leave Act (FMLA) for the purposes of the Expansion Family Medical Leave.
Analysis
The FMLA Integrated Employer Test is explained in 29 CFR §825.104(c)(2). When considering whether two entities are joint employer factors are considered in the totality of the circumstances, such as (1) common management, (2) interrelation between operations, (3) centralized control of labor relations; and (4) degree of common ownership/financial control.
The FLSA Joint Employer Test is explained in the newly revised Regulations, which is more employer friendly than the old standard. Briefly, an entity is a joint employer with another company when it has the authority to (1) hire and fire, (2) supervise and control employee work schedules, conditions, (3) determines rate/methods of pay, and (4) maintain records. (NOTE: Under this standard it is not enough to simply maintain records, the Regulations provide that the Joint Employer must exude “indicia of authority” which is more than simply have reserved rights that are often embedded in boilerplate contract provisions.
Place of Care means the physical location where care is provided for the employee’s child while the employee is at work. The physical location does not have to be solely for such care and include:
Day care facilities
Preschools
Before/after school care programs
schools
homes
summer camps
summer enrichment programs
respite care programs
Analysis
The FFCRA allows for an employee to take Emergency Family Medical Leave in order to, “care for the son or daughter under 18 years of age of such employee if the Place of Care has been closed due to a Public Health Emergency.” The definition prepares the businesses and families for the need for such leave during the summer when schools are no longer in session.
Son or Daughter maintains the definition that is included in section 2611(12), which is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is (1) under the age of 18 years old; or (2) is older than 18 years of age and is incapable of self-care because of a mental or physical disability.
Subject to a Quarantine or Isolation Order means a government (local, state or federal) order for quarantine, isolation, containment, shelter-in-place, or stay-at-home that causes the Employee to be unable to work even though their employer had work that the employee could perform but for the order.
In other words, an individual is subject to a quarantine or isolation order where (1) an individual’s employer had work for the employee, and (2) the employee could perform the work but for the order.
NOTE: The Regulation goes further and says this phrase includes when a “government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.” The definition sheds light as to what could be coming in the future with respect to quarantine restrictions.
Analysis
Individuals are eligible for Emergency Paid Sick Leave where leave is needed in six scenarios, two of which are:
The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
According to this definition, an employee who cannot work but for the shelter-in-place order, is eligible to receive Paid Sick leave. For instance, in Pennsylvania, Governor Wolf issued a Stay at Home Order for all non-life sustaining businesses to close, unless the work could be completed remotely. It follows that the employees who cannot perform work for their employer due to the Stay at Home Order, are eligible for Paid Leave.
Telework is when an employee performs work at their home or location other than the normal workplace. An employee can telework only where:
The employer has work for the employee,
The employer permits the employee to work from home; and
There are not extenuating circumstances that prevent the employee from performing the work.
An employee who Teleworks can do so during the normal business hours, or during hours agreed upon with the employer.
Analysis
This definition puts the authority on the employer. It is not enough for an employee to represent to the employer that they can work remotely. The Employer must permit the telework arrangement.
As we know, the FFCRA Paid Leave is granted where the employee cannot work or telework due to a COVID related reason. The Act was written to promote telework, and to incentive employers to allow for such an arrangement. After all, if an employer can permit and arrange for telework, it keeps the employee working and productive, and saves the employer the trouble of fronting the cost of Paid Leave.
Next…
Stay tuned for more blogs covering the highlights of the Regulations.