Common “Place of Care” and “Child Care Provider” Questions Under Families First Coronavirus Response Act
With respect to the Families First Coronavirus Response Act, the “dust is settling,” or people are finally “finding their sea legs”—pick your favorite, appropriate idiomatic expression. Now that the initial “triage” period is over and things have calmed a bit [relatively speaking, we get it], those brave souls who are responsible for administering FFCRA leave within their respective businesses are grappling with some of the finer FFCRA details. In that regard, we continue to receive the same class of questions concerning leave requested under the FFCRA to care for children [see April 15, 2020 Weld Report blog about the breadth of the term “son or daughter” for purposes of the FFCRA, available here: Families First Coronavirus Response Act’s Definition of “Son or Daughter” Extends Emergency Leave Protections to Employees in Nontraditional Family Structures] whose schools or places of care are closed, or child care providers are unavailable, due to COVID-19 related reasons. We thought we would share two reoccurring questions, and our answers, below.
Q1. If our employee requests FFCRA leave to care for his “son or daughter” because the child’s place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, may we deny leave if an alternative child care provider within the community remains open and will accept the employee’s child?
A1. No, you may not deny FFCRA leave because there is an alternative child care provider that remains open and will accept your employee’s son or daughter. The FFCRA implementing regulations and guidance indicate that the focus is on the child’s regular place of care/child care provider. To that end, the regulations and guidance read, in pertinent part, as follows:
Regulations: The regulatory preamble reads, “[g]enerally, an employee does not need to take such leave if another suitable individual—such as a co-parent, co-guardian, or the usual child care provider—is available to provide the care the employee’s child needs,” and “Section 826.20(b) explains that an employee may take expanded family and medical leave if the employee is unable to work due to a need for leave to care for his or her son or daughter if the child’s school or place of care is closed, or the child care provider of such son or daughter is unavailable, for reasons related to COVID-19.” Finally, the regulations repeatedly use the word “whose” to emphasize the child’s specific/usual child care provider.
FFCRA Q&A: “Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs.”
Q2. If our employee requests FFCRA leave to care for her “son or daughter” because the child’s place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, may we require the employee to certify the age of her “son or
A2. It depends [how’s that for a lawyerly response]. Generally, the FFCRA implementing regulations [specifically, Section 826.100, “Documentation of Need for Leave”] are clear that there is a limited universe of information that may be required to substantiate the need for FFCRA leave. Here, you may only require the following: (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.
Noticeably absent from the FFCRA implementing regulations, and guidance, is any conspicuous authorization to require certification of the son’s/daughter’s age. However, the regulations suggest that if the IRS requires more detailed information to substantiate a claim for entitlement to FFCRA tax credits, an employer may require such additional material(s) and that an employer is not required to provide the leave if materials sufficient to support the tax credit are not provided. For private-sector employers seeking to claim FFCRA tax credits, IRS guidance [specifically, Q&A #44, available here:https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs], requires such employers to also verify the “…age of the child (or children) to be cared for….” This means that private-sector employers who plan to take advantage of the FFCRA tax credit option must also verify the age of the employee’s “son or daughter.” In addition, the IRS requires a statement that special circumstances exist if an employee is requesting leave to provide care for “a child older than 14 during daylight hours.” Thus, while the DOL regulations require FFCRA leave be provided for employees to care for children if the child’s school is closed or regular child care provider is unavailable, this suggests that absent special circumstances, private-sector employers do not have to grant FFCRA leave for employees to care for a son or daughter older than 14 during daylight hours.
Note that for state and local government employers, there is no basis to require certification of the son’s/daughter’s age or limit FFRCA if a child is older than 14—because these employers are not eligible for FFCRA tax credits. ( Additional guidance specific to state and local governments, while promised, has not been issued.)