While much attention has been focused on the enactment of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the earlier-adopted Families First Coronavirus Response Act (the “FFCRA”) went into effect on April 1, 2020.
The FFCRA requires employers with fewer than 500 employees to provide employees with paid sick leave and expanded family and medical leave for specified reasons related to the COVID-10 pandemic. Additional information can be found here.
One of FFCRA’s “qualifying reasons” is where an employee is unable to work (or telework) because of the need to care for a son or daughter whose school or place of care is closed or unavailable due to COVID-19 precautions. Though the FFCRA does not use the language “bona fide need,” subsequent guidance from the Department of Labor has used the term to state that employees are eligible for this expanded benefit if they are unable to work due to a “bona fide need” for leave to care for a child whose school or child care provider is closed or unavailable due to COVID-19. So what is a “bona fide need”?
The temporary regulations released on April 1, 2020, seem to answer this question narrowly, stating that a person may utilize paid leave to care for a son or daughter whose place of school or care is unavailable due to COVID-19 only if the employee represents that “no other suitable person will be caring for the son or daughter” during the period of such leave.
The Department of Labor’s official commentary accompanying the regulations explained this regulatory language by saying, “Generally, 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.”
Note that in order to be eligible for the benefits of the FFCRA, under the statutory language one must be unable to work (or telework) due to a need for leave to care for the employee’s son or daughter. While this language is somewhat limiting, the DOL in its regulations has applied a broader application. It defines “son or daughter” as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who is incapable of self-care because of a mental or physical disability.”
As a final constraint on the use of paid leave to care for a son or daughter, the IRS has indicated that, if a parent is seeking paid leave to care during daylight hours for a child over the age of 14, the employer should request “a statement that special circumstances exist requiring the employee to provide care.”
Thus, in order to obtain paid leave to care for a child at home due to a school or daycare provider’s inability, employers are advised to require that the employee represent that (a) no other “suitable individual” will be caring for the child; (b) the child is the employee’s son or daughter, as defined in the regulations, and (c) if the child is over the age of 14, “special circumstances” require the employee to provide care for the child. The employee must also identify the name of the school or child care provider that is not available to provide care.