By Bello Welsh LLP
The Families First Coronavirus Response Act (FFCRA), enacted on March 18, 2020, creates two new emergency paid leave requirements related to the COVID-19 pandemic: up to two weeks of paid sick leave and up to twelve weeks of expanded FMLA (e-FMLA) leave, ten of which are paid. Bello Welsh previously posted a summary of the FFCRA, available here.
On April 1, 2020, the United States Department of Labor (DOL) issued temporary regulations to implement the FFCRA’s leave entitlements. The regulations and supplementary information provided by the DOL (available here) clarify ambiguities in the FFCRA and provide further guidance to employers. While we will be providing further analysis of the regulations and their implications in the coming days, certain key provisions of the regulations are summarized below.
Documentation from Employees
Employees are required to provide, and employers must retain, documentation of the need for paid sick leave or e-FMLA. Regardless of the reason for leave, employees must provide the following:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave; and
- Oral or written statement that the employee is unable to work because of the qualified reason for leave (if the employee provides an oral statement, the employer must document it and retain the documentation).
- An employee taking paid sick leave because s/he or an individual for whom s/he is caring is subject to a federal, state, or local government quarantine or isolation order must provide the name of the government entity that issued the order;
- An employee taking paid sick leave because a health care provider advised the employee or an individual for whom s/he is caring to self-quarantine due to concerns related to COVID-19 must provide the name of the health care provider;
- An employee taking paid sick leave or e-FMLA leave to care for a son or daughter whose school has been closed or whose childcare is unavailable due to COVID-19 must provide: (a) the name of the son or daughter being cared for; (b) the name of the school, place of care, or childcare provider that has closed or become unavailable; and (c) a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or e-FMLA leave.
The employer may also require any other documentation necessary to support a request for tax credits under the FFCRA. Thus, to the extent the IRS issues guidance requiring additional documentation, employers should require employees to provide it. The IRS’s current guidance on FFCRA tax credits is available here. Notably, absent the IRS issuing guidance to the contrary, employers may not require doctor’s notes.
Employees or Family Members Particularly Vulnerable to COVID-19
Many employers have asked whether employees in high-risk categories (due to advanced age or underlying medical conditions) are entitled to paid sick time if they do not report to work for fear of contracting COVID-19 and are unable to telework. Under the regulations, the answer is yes, so long as the employee has been advised by a health care provider to self-quarantine based on a belief that the employee is particularly vulnerable to COVID-19 or a federal, state, or local government authority has advised categories of citizens (e.g., those of certain age ranges or with certain medical conditions) to shelter in place, stay at home, isolate, or quarantine. Employees must provide the documentation described above (including the name of the relevant governmental authority or health care provider) to substantiate the need for leave.
By contrast, an employee is not eligible for paid sick time because a member of his/her household or other close family/friend is in a high-risk category, unless: (1) the other individual depends on the employee for care; (2) the other individual has been advised by a government authority or health care provider to quarantine, self-quarantine, isolate, stay at home, or shelter in place; and (3) the employee is unable to work or telework due to the need to care for the individual.
An employee may take paid sick or e-FMLA leave if s/he is unable to work or telework as a result of the qualifying reason for leave. Telework is considered an option only if: (1) the employer has work for the employee; (2) the employer permits the employee to work from the employee’s location; and (3) there are no extenuating circumstances (including but not limited to serious COVID-19 symptoms) that prevent the employee from performing the work.
The DOL encourages employers to implement highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to family and other responsibilities, such as teaching children whose schools are closed for COVID-19 related reasons.
The regulations and supplementary information contain detailed guidance on the items discussed above and a number of other issues, including the scope of the qualifying reasons for which employees may take paid leave; the amount of leave and pay available for sick time and e-FMLA; employee eligibility criteria; employer coverage; intermittent leave; the interaction between paid sick leave, e-FMLA, and typical FMLA; employer and employee notice requirements; job protection for employees; and recordkeeping, including documentation required for purposes of obtaining the tax credit. Individuals responsible for implementing FFCRA leaves should consult the regulations and/or legal counsel to ensure compliance.