Leading up to the effective date of the Families First Coronavirus Response Act (FFCRA), one issue that remained unclear was what documentation employers can request from employees seeking leave under the FFCRA. The U.S. Department of Labor’s (DOL) temporary rule issued April 1, 2020, addresses this issue. The new DOL regulations require that employees provide notice of their need to take either paid sick leave or expanded family and medical leave related to COVID-19. The notice must include (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for the leave; and (4) an oral or written statement that the employee is unable to work because of the qualified reason.
Employees must provide additional information specific to the qualifying reason for leave:
- If the employee is subject to a quarantine or isolation order: the name of the government entity that issued the order.
- If the employee has been advised to self-quarantine: the name of the health care provider who gave the advice.
- If the employee is caring for another who is subject to a quarantine or isolation order, or who has been advised to self-quarantine: the name of the government entity that issued the order, or the name of the health care provider.
- If the employee is taking care of a child whose school, place of care, or child care provider is unavailable: the name of the child, the name of the school, place of care, or child care provider, and a representation that no other suitable person will be caring for the child during the leave.
Employers may request additional information needed to seek FFCRA tax credits. The IRS has released FFCRA tax credit guidance, which may be found HERE.
The DOL regulations state that employers may not require the employee to provide documentation beyond the items listed above. Thus, contrary to the DOL’s initial guidance on this issue, it appears that employers cannot require employees to provide notes from health care providers, copies of government orders or school closure notices, or other supplemental documentation. Employers must keep the above documentation for four years, regardless of whether the employee is granted leave or not. If the employer claims to be exempt from the FFCRA, it must document the determination that it is exempt and retain that documentation for four years.
Practical advice: Employers should develop a process for collecting and preserving the above information, including documenting oral statements from employees. Circumstances remain fluid, and it is advisable to consult with legal counsel before denying an employee leave under the FFCRA.