expanded FMLA questions for children between 15-17
Have any of you determined whether as a municipality, it is appropriate to ask if special circumstances exist to take the leave for children between the ages of 15-17 in a FFCRA expanded FMLA application? We are curious what other cities are doing.
[cid:image001.png@01D2CF14.4EBD9AB0]http://www.dallascitynews.net/
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney's Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
Jennifer,
I believe it is appropriate, though the DOL regs don’t provide a lot of information on it. The support comes from the IRS regulationshttps://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs#substantiate_eligibility on Covid-19 which say “… 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.” (see FAQ 44)
So our application asks the following: Is child is over 14 years of age? Yes ___ No ____ If Yes, what special circumstances require you to watch the child during daylight hours?
I would apply this to any child over 14, without a cap on the age. Though rare, an employee who has a child who is 18 or older that has a disability requiring the child to go to a care facility while the employee is at work and that care facility is closed is also eligible for EPSLA and Expanded FMLA leave (see Sec III(A) General Discussion in the DOL regs).
I hope this helps. Let me know if you have more questions on it.
Best,
Dan White
[Yours Truly,]
Daniel White | Chief Counsel of Management & Operations
Office of the City Attorney | Fax 816.969.1401
220 SE Green Street | Lee's Summit, MO 64063
816.969.1412 |cityofLS.nethttp://cityofls.net | Daniel.White@cityofls.netmailto:Daniel.White@cityofls.net
[https://cityofls.net/Portals/0/Images/email-logos/SignatureLogo.png]
From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Huggard, Jennifer
Sent: Thursday, April 16, 2020 7:51 AM
To: disasterrelief@lists.imla.org
Subject: [Disasterrelief] expanded FMLA questions for children between 15-17
*** This email is from an external source, use caution before clicking on links or opening attachments. ***
Have any of you determined whether as a municipality, it is appropriate to ask if special circumstances exist to take the leave for children between the ages of 15-17 in a FFCRA expanded FMLA application? We are curious what other cities are doing.
[cid:image001.png@01D2CF14.4EBD9AB0]http://www.dallascitynews.net/
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
The Missouri Bar Disciplinary Counsel requires all Missouri lawyers to notify all recipients of e-mail that (1) e-mail communication is not a secure method of communication, (2) any e-mail sent to you or by you may be copied and held by various computers it passes through as it goes from me to you or vice versa, (3) persons not participating in our communication may intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the e-mail passed through. I am communicating to you via e-mail because you have consented to receive communications via this medium. If you change your mind and want future communications to be sent in a different manner, please let me know at once. The information contained in this electronic message may be attorney-client privilege, confidential and exempt from disclosure under applicable law and is intended only for use of the persons to whom this electronic message is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this electronic communication or any attachment thereto is strictly prohibited. If you have received this electronic communication in error, please immediately reply to the sender and delete the message from your system. Your cooperation is appreciated.
CONFIDENTIALITY NOTICE: “This electronic message transmission (including any accompanying attachments) from www.cityofls.net is intended solely for the person or entity for its intended recipient(s) and may contain information that is confidential, privileged, or otherwise protected from disclosure. The information contained is intended solely for the use of the individual(s), organization(s) or entity(ies) named above. If you have received this transmission but are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the contents of this message is strictly prohibited. If you have received this e-mail in error, please contact sender immediately by Reply e-mail and delete/destroy the original message and all copies.”
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exists.
Jennifer:
This issue came up for us as well. Unfortunately, the IRS regulations refer to tax credits that public employers and municipalities will not receive. It is my position that FAQ 44 is applicable to private employers after conferring with another City Attorney about the IRS regs. (See the top of page 100 of the Act (second document)). Therefore, it is my position governmental entities are not entitled to use the older than 14 standard.
The DOL Regs make clear that a child is under 18 years old or a child over 18 that has a disability. Therefore, I respectfully have a different opinion than Mr. White related to the age of the child.
However, the notice to employers requires that 1) no other suitable individual is available to care for the child; 2) how the reason for leave prevents the employee from working or teleworking; 3) the employee is actually providing care.
I advised our HR Department of the following:
3. DOCUMENTATION FOR SICK AND EFMLA LEAVE
Employee required to give notice to employer
Regulations specifically state employee should provide “signed statement” (p. 19339)
Regulations also say oral notice sufficient (p. 19354)
Conflict within the document about form of notice
• My opinion: Signed statement creates a record, less potential for abuse
•For all qualifying reasons, employee notice must include:
Name, Date, Coronavirus Qualifying Reason, Statement that employee cannot work or telework* because of the qualifying reason (p. 19339)
For childcare, must also give: Name of Child, provider who is unavailable, and statement that no other suitable individual can provide care
• Consider telework when accepting leave documentation for approval*
· How does the reason prevent employee from teleworking if teleworking is available to the employee?
• Under both types of leave, sick leave and EFMLA:
o Only applies when work exists for the employee to do
o Child under 18 or over 18 with a disability
o Employee cannot work or telework due to the need to “actually” care for the child
o Only if there is no other suitable individual to provide care
Suitable individual defined as co-parent, co-guardian in the regs
o Standard: “only when the employee needs to, and is actually caring for the child” (p. 19330)
• Under EFMLA:
o Provider of care on a regular basis and receives compensation is not available
o Excludes a situation where it is a family member who is no longer available (Per Diane Juffras in Coates Cannon (https://canons.sog.unc.edu/highlights-of-the-u-s-department-of-labors-final-ffcra-regulations/)
o Does not include the unpaid provider
o Will include summer camps
• Under Sick Leave:
o Employee who cannot work because schools are closed or their regular childcare provider is unavailable regardless of whether that provider is paid to look after the children or not.
o Will include summer camps
• “The Emergency FMLA Act defines “child care provider” as one who provides child care services on a regular basis and receives compensation for those services. It excludes the situation where a family member has been providing child care and is no longer available. See section 3102(b) of the Families First Act. The Sick Leave Act, on the other hand, provides emergency paid sick leave for an employee who cannot work because schools are closed or their regular childcare provider is unavailable regardless of whether that provider is paid to look after the children or not. See 29 CFR § 825.10(a).” Coates Cannon (4/6/20)
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Daniel R. White
Sent: Thursday, April 16, 2020 9:51 AM
To: Huggard, Jennifer jennifer.huggard@dallascityhall.com; disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] expanded FMLA questions for children between 15-17
Jennifer,
I believe it is appropriate, though the DOL regs don’t provide a lot of information on it. The support comes from the IRS regulationshttps://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs#substantiate_eligibility on Covid-19 which say “… 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.” (see FAQ 44)
So our application asks the following: Is child is over 14 years of age? Yes ___ No ____ If Yes, what special circumstances require you to watch the child during daylight hours?
I would apply this to any child over 14, without a cap on the age. Though rare, an employee who has a child who is 18 or older that has a disability requiring the child to go to a care facility while the employee is at work and that care facility is closed is also eligible for EPSLA and Expanded FMLA leave (see Sec III(A) General Discussion in the DOL regs).
I hope this helps. Let me know if you have more questions on it.
Best,
Dan White
[Yours Truly,]
Daniel White | Chief Counsel of Management & Operations
Office of the City Attorney | Fax 816.969.1401
220 SE Green Street | Lee's Summit, MO 64063
816.969.1412 |cityofLS.nethttps://linkprotect.cudasvc.com/url?a=http%3a%2f%2fcityofls.net&c=E,1,B1wBSQpBl1Eb-msJVxdcQZK3T3N8b9N7YPfhreKNrkwtfGivbDGD2umfxNEWaOq515lNue4G259II2La8QaCk-hZAfSZ5ji3RlZWAtZ0NxA5&typo=1 | Daniel.White@cityofls.netmailto:Daniel.White@cityofls.net
[https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fcityofls.net%2fPortals%2f0%2fImages%2femail-logos%2fSignatureLogo.png&c=E,1,aWgpwwzv-4O371nHPSwN10md2Z26oTdgpwJDrad7RLkjeiCSp5i9gYYdP-DQyckwgRVpfPz_L7SiGX3Be_iUhE9gkB6gxJY8bxysfizuITzDw0cAoTbaA3ty&typo=1]
From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Huggard, Jennifer
Sent: Thursday, April 16, 2020 7:51 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] expanded FMLA questions for children between 15-17
*** This email is from an external source, use caution before clicking on links or opening attachments. ***
Have any of you determined whether as a municipality, it is appropriate to ask if special circumstances exist to take the leave for children between the ages of 15-17 in a FFCRA expanded FMLA application? We are curious what other cities are doing.
[cid:image001.png@01D2CF14.4EBD9AB0]https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.dallascitynews.net%2f&c=E,1,hSBglgfpPo6qP-teYea0-U8mUWVFh6n1X-u0cYQwJo1m0t0dcxqmvknEqfOskMcttQIVCScw3goRv0Kx00bifUw1xS7jvneQVht8txhUoYqcFyfvANeAI_Nq&typo=1
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
The Missouri Bar Disciplinary Counsel requires all Missouri lawyers to notify all recipients of e-mail that (1) e-mail communication is not a secure method of communication, (2) any e-mail sent to you or by you may be copied and held by various computers it passes through as it goes from me to you or vice versa, (3) persons not participating in our communication may intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the e-mail passed through. I am communicating to you via e-mail because you have consented to receive communications via this medium. If you change your mind and want future communications to be sent in a different manner, please let me know at once. The information contained in this electronic message may be attorney-client privilege, confidential and exempt from disclosure under applicable law and is intended only for use of the persons to whom this electronic message is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this electronic communication or any attachment thereto is strictly prohibited. If you have received this electronic communication in error, please immediately reply to the sender and delete the message from your system. Your cooperation is appreciated.
CONFIDENTIALITY NOTICE: “This electronic message transmission (including any accompanying attachments) from www.cityofls.nethttps://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.cityofls.net&c=E,1,Lr4u3B3Gakpcecdzig3mpJ-oulF5ELmm6n37YoJgBd4pFnoa8UvtNMuOAmzQiRw4O4cQGdZPbPacLT-Oq7702-TXlGeTpVjrFIC5GTSDsOdI07PKmsS9r9Lo4ysU&typo=1 is intended solely for the person or entity for its intended recipient(s) and may contain information that is confidential, privileged, or otherwise protected from disclosure. The information contained is intended solely for the use of the individual(s), organization(s) or entity(ies) named above. If you have received this transmission but are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the contents of this message is strictly prohibited. If you have received this e-mail in error, please contact sender immediately by Reply e-mail and delete/destroy the original message and all copies.”
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exists.
Thank you so much Dan and Anna! I appreciate your thoughtful feedback!
From: Davis, Anna Anna.Davis@durhamnc.gov
Sent: Thursday, April 16, 2020 9:08 AM
To: Daniel R. White Daniel.White@cityofls.net; Huggard, Jennifer jennifer.huggard@dallascityhall.com; disasterrelief@lists.imla.org
Subject: RE: expanded FMLA questions for children between 15-17
External Email!
Jennifer:
This issue came up for us as well. Unfortunately, the IRS regulations refer to tax credits that public employers and municipalities will not receive. It is my position that FAQ 44 is applicable to private employers after conferring with another City Attorney about the IRS regs. (See the top of page 100 of the Act (second document)). Therefore, it is my position governmental entities are not entitled to use the older than 14 standard.
The DOL Regs make clear that a child is under 18 years old or a child over 18 that has a disability. Therefore, I respectfully have a different opinion than Mr. White related to the age of the child.
However, the notice to employers requires that 1) no other suitable individual is available to care for the child; 2) how the reason for leave prevents the employee from working or teleworking; 3) the employee is actually providing care.
I advised our HR Department of the following:
3. DOCUMENTATION FOR SICK AND EFMLA LEAVE
Employee required to give notice to employer
Regulations specifically state employee should provide “signed statement” (p. 19339)
Regulations also say oral notice sufficient (p. 19354)
Conflict within the document about form of notice
• My opinion: Signed statement creates a record, less potential for abuse
•For all qualifying reasons, employee notice must include:
Name, Date, Coronavirus Qualifying Reason, Statement that employee cannot work or telework* because of the qualifying reason (p. 19339)
For childcare, must also give: Name of Child, provider who is unavailable, and statement that no other suitable individual can provide care
• Consider telework when accepting leave documentation for approval*
· How does the reason prevent employee from teleworking if teleworking is available to the employee?
• Under both types of leave, sick leave and EFMLA:
o Only applies when work exists for the employee to do
o Child under 18 or over 18 with a disability
o Employee cannot work or telework due to the need to “actually” care for the child
o Only if there is no other suitable individual to provide care
Suitable individual defined as co-parent, co-guardian in the regs
o Standard: “only when the employee needs to, and is actually caring for the child” (p. 19330)
• Under EFMLA:
o Provider of care on a regular basis and receives compensation is not available
o Excludes a situation where it is a family member who is no longer available (Per Diane Juffras in Coates Cannon (https://canons.sog.unc.edu/highlights-of-the-u-s-department-of-labors-final-ffcra-regulations/)
o Does not include the unpaid provider
o Will include summer camps
• Under Sick Leave:
o Employee who cannot work because schools are closed or their regular childcare provider is unavailable regardless of whether that provider is paid to look after the children or not.
o Will include summer camps
• “The Emergency FMLA Act defines “child care provider” as one who provides child care services on a regular basis and receives compensation for those services. It excludes the situation where a family member has been providing child care and is no longer available. See section 3102(b) of the Families First Act. The Sick Leave Act, on the other hand, provides emergency paid sick leave for an employee who cannot work because schools are closed or their regular childcare provider is unavailable regardless of whether that provider is paid to look after the children or not. See 29 CFR § 825.10(a).” Coates Cannon (4/6/20)
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Daniel R. White
Sent: Thursday, April 16, 2020 9:51 AM
To: Huggard, Jennifer <jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] expanded FMLA questions for children between 15-17
Jennifer,
I believe it is appropriate, though the DOL regs don’t provide a lot of information on it. The support comes from the IRS regulationshttps://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs#substantiate_eligibility on Covid-19 which say “… 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.” (see FAQ 44)
So our application asks the following: Is child is over 14 years of age? Yes ___ No ____ If Yes, what special circumstances require you to watch the child during daylight hours?
I would apply this to any child over 14, without a cap on the age. Though rare, an employee who has a child who is 18 or older that has a disability requiring the child to go to a care facility while the employee is at work and that care facility is closed is also eligible for EPSLA and Expanded FMLA leave (see Sec III(A) General Discussion in the DOL regs).
I hope this helps. Let me know if you have more questions on it.
Best,
Dan White
[Yours Truly,]
Daniel White | Chief Counsel of Management & Operations
Office of the City Attorney | Fax 816.969.1401
220 SE Green Street | Lee's Summit, MO 64063
816.969.1412 |cityofLS.nethttps://linkprotect.cudasvc.com/url?a=http%3a%2f%2fcityofls.net&c=E,1,B1wBSQpBl1Eb-msJVxdcQZK3T3N8b9N7YPfhreKNrkwtfGivbDGD2umfxNEWaOq515lNue4G259II2La8QaCk-hZAfSZ5ji3RlZWAtZ0NxA5&typo=1 | Daniel.White@cityofls.netmailto:Daniel.White@cityofls.net
[https://linkprotect.cudasvc.com/url?a=https://cityofls.net/Portals/0/Images/email-logos/SignatureLogo.png&c=E,1,aWgpwwzv-4O371nHPSwN10md2Z26oTdgpwJDrad7RLkjeiCSp5i9gYYdP-DQyckwgRVpfPz_L7SiGX3Be_iUhE9gkB6gxJY8bxysfizuITzDw0cAoTbaA3ty&typo=1]
From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Huggard, Jennifer
Sent: Thursday, April 16, 2020 7:51 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] expanded FMLA questions for children between 15-17
*** This email is from an external source, use caution before clicking on links or opening attachments. ***
Have any of you determined whether as a municipality, it is appropriate to ask if special circumstances exist to take the leave for children between the ages of 15-17 in a FFCRA expanded FMLA application? We are curious what other cities are doing.
[cid:image001.png@01D2CF14.4EBD9AB0]https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.dallascitynews.net%2f&c=E,1,hSBglgfpPo6qP-teYea0-U8mUWVFh6n1X-u0cYQwJo1m0t0dcxqmvknEqfOskMcttQIVCScw3goRv0Kx00bifUw1xS7jvneQVht8txhUoYqcFyfvANeAI_Nq&typo=1
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
The Missouri Bar Disciplinary Counsel requires all Missouri lawyers to notify all recipients of e-mail that (1) e-mail communication is not a secure method of communication, (2) any e-mail sent to you or by you may be copied and held by various computers it passes through as it goes from me to you or vice versa, (3) persons not participating in our communication may intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the e-mail passed through. I am communicating to you via e-mail because you have consented to receive communications via this medium. If you change your mind and want future communications to be sent in a different manner, please let me know at once. The information contained in this electronic message may be attorney-client privilege, confidential and exempt from disclosure under applicable law and is intended only for use of the persons to whom this electronic message is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this electronic communication or any attachment thereto is strictly prohibited. If you have received this electronic communication in error, please immediately reply to the sender and delete the message from your system. Your cooperation is appreciated.
CONFIDENTIALITY NOTICE: “This electronic message transmission (including any accompanying attachments) from www.cityofls.nethttps://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.cityofls.net&c=E,1,Lr4u3B3Gakpcecdzig3mpJ-oulF5ELmm6n37YoJgBd4pFnoa8UvtNMuOAmzQiRw4O4cQGdZPbPacLT-Oq7702-TXlGeTpVjrFIC5GTSDsOdI07PKmsS9r9Lo4ysU&typo=1 is intended solely for the person or entity for its intended recipient(s) and may contain information that is confidential, privileged, or otherwise protected from disclosure. The information contained is intended solely for the use of the individual(s), organization(s) or entity(ies) named above. If you have received this transmission but are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the contents of this message is strictly prohibited. If you have received this e-mail in error, please contact sender immediately by Reply e-mail and delete/destroy the original message and all copies.”
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exists.
CAUTION: This email originated from outside of the organization. Please, do not click links or open attachments unless you recognize the sender and know the content is safe.
The IRS regulation relates to claiming the tax credit that cities are not able to claim. Does that impact your review on asking the question about a child 14+ given DOL’s regulations limit the information that can be required from a person requesting leave?
§ 826.90https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act#sectno-citation-%E2%80%89826.90
Employee notice of need for leave.
. . .
(c) Content of notice. Generally, it will be reasonable for an Employer to require oral notice and sufficient information for an Employer to determine whether the requested leave is covered by the EPSLA or the EFMLEA. An Employer may not require the notice to include documentation beyond what is allowed by § 826.100.
Our policies are online at https://www.houstontx.gov/policies/administrative_policies.html. They are AP 3-37 and AP 3-38.
Deidra Penny
Deputy City Attorney & First Assistant City Attorney
City of Houston Legal Department
Deidra.Penny@HoustonTx.govmailto:Deidra.Penny@HoustonTx.gov
832.393.6246tel:832.393.6246 (O)
The information contained above or attached is privileged and/or confidential. If you received this data in error, please notify me, destroy all copies immediately and do not copy or distribute the information.
From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Daniel R. White
Sent: Thursday, April 16, 2020 8:51 AM
To: Huggard, Jennifer jennifer.huggard@dallascityhall.com; disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] expanded FMLA questions for children between 15-17
[Message Came from Outside the City of Houston Mail System]
Jennifer,
I believe it is appropriate, though the DOL regs don’t provide a lot of information on it. The support comes from the IRS regulationshttps://gcc01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.irs.gov%2Fnewsroom%2Fcovid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs%23substantiate_eligibility&data=02%7C01%7CDeidra.Penny%40houstontx.gov%7Cbb9b28912e184306092308d7e20dfbe9%7C57a85a10258b45b4a519c96c7721094c%7C0%7C0%7C637226422009945850&sdata=XfH35NUig%2FpFslOlA%2FacBwVfFW1LjWqsG2JWcSetFgM%3D&reserved=0 on Covid-19 which say “… 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.” (see FAQ 44)
So our application asks the following: Is child is over 14 years of age? Yes ___ No ____ If Yes, what special circumstances require you to watch the child during daylight hours?
I would apply this to any child over 14, without a cap on the age. Though rare, an employee who has a child who is 18 or older that has a disability requiring the child to go to a care facility while the employee is at work and that care facility is closed is also eligible for EPSLA and Expanded FMLA leave (see Sec III(A) General Discussion in the DOL regs).
I hope this helps. Let me know if you have more questions on it.
Best,
Dan White
[Yours Truly,]
Daniel White | Chief Counsel of Management & Operations
Office of the City Attorney | Fax 816.969.1401
220 SE Green Street | Lee's Summit, MO 64063
816.969.1412 |cityofLS.nethttps://gcc01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fcityofls.net%2F&data=02%7C01%7CDeidra.Penny%40houstontx.gov%7Cbb9b28912e184306092308d7e20dfbe9%7C57a85a10258b45b4a519c96c7721094c%7C0%7C0%7C637226422009945850&sdata=VNxE1gdazgWDPWATv6wp8SQTshfGKg2SCyjFaltW2pI%3D&reserved=0 | Daniel.White@cityofls.netmailto:Daniel.White@cityofls.net
[https://cityofls.net/Portals/0/Images/email-logos/SignatureLogo.png]
From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Huggard, Jennifer
Sent: Thursday, April 16, 2020 7:51 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] expanded FMLA questions for children between 15-17
*** This email is from an external source, use caution before clicking on links or opening attachments. ***
Have any of you determined whether as a municipality, it is appropriate to ask if special circumstances exist to take the leave for children between the ages of 15-17 in a FFCRA expanded FMLA application? We are curious what other cities are doing.
[cid:image001.png@01D2CF14.4EBD9AB0]https://gcc01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.dallascitynews.net%2F&data=02%7C01%7CDeidra.Penny%40houstontx.gov%7Cbb9b28912e184306092308d7e20dfbe9%7C57a85a10258b45b4a519c96c7721094c%7C0%7C0%7C637226422009955807&sdata=6RxzKPNeSx%2FMTqBZtF8%2BMt1rJwqYozIFXvKgGCkAQLk%3D&reserved=0
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
The Missouri Bar Disciplinary Counsel requires all Missouri lawyers to notify all recipients of e-mail that (1) e-mail communication is not a secure method of communication, (2) any e-mail sent to you or by you may be copied and held by various computers it passes through as it goes from me to you or vice versa, (3) persons not participating in our communication may intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the e-mail passed through. I am communicating to you via e-mail because you have consented to receive communications via this medium. If you change your mind and want future communications to be sent in a different manner, please let me know at once. The information contained in this electronic message may be attorney-client privilege, confidential and exempt from disclosure under applicable law and is intended only for use of the persons to whom this electronic message is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this electronic communication or any attachment thereto is strictly prohibited. If you have received this electronic communication in error, please immediately reply to the sender and delete the message from your system. Your cooperation is appreciated.
CONFIDENTIALITY NOTICE: “This electronic message transmission (including any accompanying attachments) from www.cityofls.nethttp://www.cityofls.net is intended solely for the person or entity for its intended recipient(s) and may contain information that is confidential, privileged, or otherwise protected from disclosure. The information contained is intended solely for the use of the individual(s), organization(s) or entity(ies) named above. If you have received this transmission but are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the contents of this message is strictly prohibited. If you have received this e-mail in error, please contact sender immediately by Reply e-mail and delete/destroy the original message and all copies.”
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exists.
Deidra,
I certainly agree with that cities cannot receive the tax credit, but per Section 7005(a) of the FFCRA it says that “Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act shall not be considered wages for purposes of section 3111(a) of the Internal Revenue Code of 1986 or compensation for purposes of section 3221(a) of such Code.”
In other words, employers don’t have to pay their portion of the social security tax on paid wages attributable to EPSLA and Expanded FMLA leave. Unlike the other sections on taxes in the FFCRA, there is no exclusion of government employers in this section.
As I read the act and regs, the main purpose for requiring documentation for leave is to show that it was paid legitimately and that any tax credit requested or non-payment of taxes was legitimate. So cities still fall on under the non-payment of taxes and potentially could be subject to an IRS audit where the documentation would be needed (although I would expect audits of cities to be very rare, if at all). Otherwise, why would the government require all employees to provide documentation to their employers?
The applicability of Section 7005 has been a topic of a lot of discussion and perhaps I’m reading it too broadly, but I think this an area where cities are safe to gain some sort of benefit from having to pay these wage and as a result, need to document the leave the same way as though we receive the credits.
It’s always hard to get clarity on these issues when complex laws and regulations are put together so quickly. Good luck!
From: Penny, Deidra - LGL Deidra.Penny@houstontx.gov
Sent: Thursday, April 16, 2020 10:10 AM
To: Daniel R. White Daniel.White@cityofls.net; Huggard, Jennifer jennifer.huggard@dallascityhall.com; disasterrelief@lists.imla.org
Subject: RE: expanded FMLA questions for children between 15-17
*** This email is from an external source, use caution before clicking on links or opening attachments. ***
The IRS regulation relates to claiming the tax credit that cities are not able to claim. Does that impact your review on asking the question about a child 14+ given DOL’s regulations limit the information that can be required from a person requesting leave?
§ 826.90https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act#sectno-citation-%E2%80%89826.90
Employee notice of need for leave.
. . .
(c) Content of notice. Generally, it will be reasonable for an Employer to require oral notice and sufficient information for an Employer to determine whether the requested leave is covered by the EPSLA or the EFMLEA. An Employer may not require the notice to include documentation beyond what is allowed by § 826.100.
Our policies are online at https://www.houstontx.gov/policies/administrative_policies.html. They are AP 3-37 and AP 3-38.
Deidra Penny
Deputy City Attorney & First Assistant City Attorney
City of Houston Legal Department
Deidra.Penny@HoustonTx.govmailto:Deidra.Penny@HoustonTx.gov
832.393.6246tel:832.393.6246 (O)
The information contained above or attached is privileged and/or confidential. If you received this data in error, please notify me, destroy all copies immediately and do not copy or distribute the information.
From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Daniel R. White
Sent: Thursday, April 16, 2020 8:51 AM
To: Huggard, Jennifer <jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] expanded FMLA questions for children between 15-17
[Message Came from Outside the City of Houston Mail System]
Jennifer,
I believe it is appropriate, though the DOL regs don’t provide a lot of information on it. The support comes from the IRS regulationshttps://gcc01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.irs.gov%2Fnewsroom%2Fcovid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs%23substantiate_eligibility&data=02%7C01%7CDeidra.Penny%40houstontx.gov%7Cbb9b28912e184306092308d7e20dfbe9%7C57a85a10258b45b4a519c96c7721094c%7C0%7C0%7C637226422009945850&sdata=XfH35NUig%2FpFslOlA%2FacBwVfFW1LjWqsG2JWcSetFgM%3D&reserved=0 on Covid-19 which say “… 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.” (see FAQ 44)
So our application asks the following: Is child is over 14 years of age? Yes ___ No ____ If Yes, what special circumstances require you to watch the child during daylight hours?
I would apply this to any child over 14, without a cap on the age. Though rare, an employee who has a child who is 18 or older that has a disability requiring the child to go to a care facility while the employee is at work and that care facility is closed is also eligible for EPSLA and Expanded FMLA leave (see Sec III(A) General Discussion in the DOL regs).
I hope this helps. Let me know if you have more questions on it.
Best,
Dan White
[Yours Truly,]
Daniel White | Chief Counsel of Management & Operations
Office of the City Attorney | Fax 816.969.1401
220 SE Green Street | Lee's Summit, MO 64063
816.969.1412 |cityofLS.nethttps://gcc01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fcityofls.net%2F&data=02%7C01%7CDeidra.Penny%40houstontx.gov%7Cbb9b28912e184306092308d7e20dfbe9%7C57a85a10258b45b4a519c96c7721094c%7C0%7C0%7C637226422009945850&sdata=VNxE1gdazgWDPWATv6wp8SQTshfGKg2SCyjFaltW2pI%3D&reserved=0 | Daniel.White@cityofls.netmailto:Daniel.White@cityofls.net
[https://cityofls.net/Portals/0/Images/email-logos/SignatureLogo.png]
From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Huggard, Jennifer
Sent: Thursday, April 16, 2020 7:51 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] expanded FMLA questions for children between 15-17
*** This email is from an external source, use caution before clicking on links or opening attachments. ***
Have any of you determined whether as a municipality, it is appropriate to ask if special circumstances exist to take the leave for children between the ages of 15-17 in a FFCRA expanded FMLA application? We are curious what other cities are doing.
[cid:image001.png@01D2CF14.4EBD9AB0]https://gcc01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.dallascitynews.net%2F&data=02%7C01%7CDeidra.Penny%40houstontx.gov%7Cbb9b28912e184306092308d7e20dfbe9%7C57a85a10258b45b4a519c96c7721094c%7C0%7C0%7C637226422009955807&sdata=6RxzKPNeSx%2FMTqBZtF8%2BMt1rJwqYozIFXvKgGCkAQLk%3D&reserved=0
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
The Missouri Bar Disciplinary Counsel requires all Missouri lawyers to notify all recipients of e-mail that (1) e-mail communication is not a secure method of communication, (2) any e-mail sent to you or by you may be copied and held by various computers it passes through as it goes from me to you or vice versa, (3) persons not participating in our communication may intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the e-mail passed through. I am communicating to you via e-mail because you have consented to receive communications via this medium. If you change your mind and want future communications to be sent in a different manner, please let me know at once. The information contained in this electronic message may be attorney-client privilege, confidential and exempt from disclosure under applicable law and is intended only for use of the persons to whom this electronic message is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this electronic communication or any attachment thereto is strictly prohibited. If you have received this electronic communication in error, please immediately reply to the sender and delete the message from your system. Your cooperation is appreciated.
CONFIDENTIALITY NOTICE: “This electronic message transmission (including any accompanying attachments) from www.cityofls.nethttp://www.cityofls.net is intended solely for the person or entity for its intended recipient(s) and may contain information that is confidential, privileged, or otherwise protected from disclosure. The information contained is intended solely for the use of the individual(s), organization(s) or entity(ies) named above. If you have received this transmission but are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the contents of this message is strictly prohibited. If you have received this e-mail in error, please contact sender immediately by Reply e-mail and delete/destroy the original message and all copies.”
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exists.
The Missouri Bar Disciplinary Counsel requires all Missouri lawyers to notify all recipients of e-mail that (1) e-mail communication is not a secure method of communication, (2) any e-mail sent to you or by you may be copied and held by various computers it passes through as it goes from me to you or vice versa, (3) persons not participating in our communication may intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the e-mail passed through. I am communicating to you via e-mail because you have consented to receive communications via this medium. If you change your mind and want future communications to be sent in a different manner, please let me know at once. The information contained in this electronic message may be attorney-client privilege, confidential and exempt from disclosure under applicable law and is intended only for use of the persons to whom this electronic message is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this electronic communication or any attachment thereto is strictly prohibited. If you have received this electronic communication in error, please immediately reply to the sender and delete the message from your system. Your cooperation is appreciated.
CONFIDENTIALITY NOTICE: “This electronic message transmission (including any accompanying attachments) from www.cityofls.net is intended solely for the person or entity for its intended recipient(s) and may contain information that is confidential, privileged, or otherwise protected from disclosure. The information contained is intended solely for the use of the individual(s), organization(s) or entity(ies) named above. If you have received this transmission but are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the contents of this message is strictly prohibited. If you have received this e-mail in error, please contact sender immediately by Reply e-mail and delete/destroy the original message and all copies.”
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exists.
