DOL Provides More Guidance for Household Employers on FFCRA Compliance

May 19, 2020 | COVID-19, Employee Benefits, Labor Laws

The U.S. Department of Labor answered additional questions about FFCRA compliance including the eligibility of paid leave for household workers, documentation needed for paid leave, and school closures due to summer vacation.

The U.S. Department of Labor (DOL) recently added several new answers to frequently asked questions (FAQs) to help employers, including families with household help, comply with requirements set by the Families First Coronavirus Response Act (FFCRA).

The new questions address a variety of topics, including:

Eligibility of household employees for FFCRA leave;
Whether employers can require employees to provide documentation on when they ask for FFCRA leave to seek a diagnosis of or treatment for COVID-19; and
Child care eligibility for FFCRA leave due to a change of circumstances or school closures due to summer vacation.

We’ll address DOL guidance on these topics below. Or review these new (and all other) DOL FAQs regarding the FFCRA.

I hire workers to perform certain domestic tasks, such as landscaping, cleaning, and child care, at my home. Do I have to provide my domestic service workers paid sick leave or expanded family and medical leave?

It depends on the relationship you have with the household employees you hire. Under the FFCRA, you are required to provide paid sick leave or expanded family and medical leave if you are an employer under the Fair Labor Standards Act (FLSA), regardless of whether you are an employer for federal tax purposes. If the household employees are economically dependent on you for the opportunity to work, then you are likely their employer under the FLSA and generally must provide paid sick leave and expanded family and medical leave to eligible workers. An example of a household employee who may be economically dependent on you is a nanny who cares for your children as a full-time job, follows your precise directions while working, and has no other clients.

If, on the other hand, the workers are not economically dependent on you and instead are essentially in business for themselves, you are their customer rather than their employer for FLSA purposes. Accordingly, you are not required to provide such workers with paid sick leave or expanded family and medical leave. An example of a worker who is not economically dependent on you is a handyman who works for you sporadically on a project-by-project basis, controls the manner in which they perform work, use their own equipment, set their own hours and fees, and have several customers. Likewise, a daycare provider who works out of their house and has several clients is not economically dependent upon you.

Of course, you are not required to provide paid sick leave or expanded family and medical leave for workers who are employed by a third-party service provider with which you have contracted to provide you with specific domestic services.

Ultimately, the question of economic dependence can be complicated and fact-specific. As a rule of thumb, but not ultimately determinative, if you are not required to file Schedule H, Household Employment Taxes, along with your Form 1040, U.S. Individual Income Tax Return, for the amount you pay a domestic service worker because the worker is not your employee for federal tax purposes, then the worker is likely not economically dependent upon you and you are likely not the worker’s employer under the FLSA. In this case, you likely would not be required to provide paid sick leave and expanded family and medical leave. If the worker is your employee for federal tax purposes, so that you are required to file Schedule H for the worker with your Form 1040, you will need to determine whether the worker is economically dependent on you for the opportunity to work. If you determine that the worker is economically dependent upon you for the opportunity to work, then you are likely required to provide that worker with paid sick leave and expanded family and medical leave.

My employee claims to have tiredness or other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may I require from the employee to document efforts to obtain a diagnosis? When can it be required?

In order for your employee to take leave under the FFCRA, you may require your employee to identify their symptoms and a date for a test or doctor’s appointment. You may not, however, require your employee to provide further documentation or similar certification that they sought a diagnosis or treatment from a health care provider in order for your employee to use paid sick leave for COVID-19 related symptoms. The minimal documentation required to take this leave is intentional so that employees with COVID-19 symptoms may take leave and slow the spread of COVID-19.

Please note, however, if your employee is concurrently taking another type of paid leave, any documentation requirements relevant to that leave still apply.

My employee took paid sick leave and is now taking expanded family and medical leave to care for their children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May my employee 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 qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, your employee may be able to take leave if his or her child’s care provider during the summer — a camp or other programs in which the employee’s child is enrolled — is closed or unavailable for a COVID-19 related reason.

GTM can help

Have questions about FFCRA paid leave for employees and tax credits for employers? GTM clients can call (800) 929-9213 and speak with our client support team. Not a GTM client? Give us a call at (800) 929-9213 for a complimentary, no-obligation consultation with a household employment expert. let us show you how GTM makes nanny payroll and taxes easy and can manage paid leave and tax credits for you.