Finally! The Department of Labor Issues FFCRA Regulations

By , and
April 1, 2020

Today the DOL released detailed regulations with answers to nearly every question we have had over the past two weeks regarding this law.  While we are still reviewing these regulations, there are two important details that had so far NOT been answered before now:

First, the DOL specifically states that the paid leave under category No. 1 includes a “stay at home” order IF that order advises certain categories of workers to stay home despite work being available. The DOL writes:

Subject to a Quarantine or Isolation Order. For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local 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.

Because Governor Evers’ Order specifically states that “Elderly people and those who are vulnerable as a result of underlying health conditions” are “urged to stay home or residence to the extent possible except to seek medical care” this means individuals in these categories are eligible for leave under category one.  Note the CDC has defined “older adults” for COVID-19 high-risk at 65 years and older.

Second, with respect to paid leave In addition, with respect to leave for child care purposes, the DOL requires the employee to provide the following:

  1. the name of the son or daughter being cared for;
  2. the name of the school, place of care, or child care provider that has closed or become unavailable; and
  3. 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.

It also clarifies that the employee must establish that the “child care provider” is someone who is being compensated for the care.  A family member who is not being compensated to care for the child would not fit into this definition.

Finally, note that the link we sent earlier today from the IRS further clarified the information needed to claim a tax credit for child care leave:

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

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