Hi everyone. We have had a lot of questions about what type of documentation an employer can require when an employee wants to take the extended FMLA benefit. The answer has been updated below. You CAN require documentation.

The DOL has recently provided guidance, in some cases in just the last 24 hours, on various issues that we touched upon on Wednesday.  First, here is the DOL’s guidance on counting employees to 500:

1. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?

You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

DOL went with the FMLA definitions, but made it a “snapshot” count as of the date the employee would start the leave.  So, this will require multiple counts, which will be a headache for providers who are close to the line.  Also as suggested on the call, the DOL includes all jointly employed employees, but a provider will want to be careful about admitting that it jointly employs employees with another entity.

In addition, the DOL has clarified that the paid sick leave and the expanded FMLA leave are not concurrent, but can be run consecutively for a maximum of 12 weeks of leave where the employee is taking care of a child whose school/day care is closed:

2. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act. 

Another area that has been clarified is documentation of the need for leave.  The DOL is advising that employees do need to provide documentation of the need for leave – employers do not have to take their word for it:

3. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?

You are entitled to paid sick leave if you are unable to work or telework due to a qualifying reason related to COVID-19. You must provide to your employer documentation in support of the reasons for your paid sick leave. These documents may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising you to self-quarantine due to concerns related to COVID-19. 

You must provide to your employer documentation in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this requirement may be satisfied with a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.

4. I have been reading information on the Families First and Sick day legislation.  A few things think important to get confirmation on.  See below on sections that providers could use clarification. To be eligible for the sick days a person just has to be hired.  They can go out the end of 1^st day or  day 2 and then the number of sick days is based on the hours they were hired for. 

Correct for the paid sick leave benefit.  For the expanded FMLA benefit, there is a 30 days of service requirement.

5. Seems that the staff who have been working extra hours for months will need to be paid more hours than just their hired schedule as have read language about looking back to capture the variable hours worked.

This is potentially correct.  Here is the DOL’s Q&A guidance on this issue: 

How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment

6. If a business is closed and done layoffs I don’t think either of the new legislation apply.

Yes, correct.  Also, fresh guidance from the DOL in the last 24 hours confirms this position.

7. Haven’t found any guidance on what documentation we can ask for on either the sick days or the Families First.

See the Q&A pair noted above.  Good news is that documentation apparently can be requested, and the employee will need to provide.

8. Also seems that even if the work hours are nights and weekends that the caring for kids out of school the employee can request the time off.  Does seem that there is not any notation regarding the period of time during summer break when  schools are not in session just based on the school year.  This could then be about childcare not being available.

This is still an open question.  Would suggest that every provider consult qualified employment law counsel on this question.