We previously provided information on the newly enacted Families First Coronavirus Response Act (FFCRA) which went into effect on April 1 (see here) . S ince its enactment, there has been a tremendous amount of confusion and uncertainty surrounding the FFCRA. However, the Department of Labor (DOL) has provided much needed clarification in its recently issued regulations https://www.federalregister.gov/documents which explain what type of documentation must be obtained when employees are requesting leave under FFCRA.

Recall, under the FFCRA, employees make take leave for any one of the following reasons:

  1. The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who (1) is subject to a Federal, State or local quarantine or isolation order, or (2) has been advised by a health care provider to self- quarantine due to concerns related to COVID-19;
  5. The employee is caring for a son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in Consultation with the Secretary of Treasury and Labor.

The DOL regulations explain that when requesting leave, employees must provide a signed statement containing the following information:

  1. the employee's name;
  2. the date(s) for which leave is requested;
  3. the COVID-19 qualifying reason for leave; and
  4. a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

Employees must also provide additional information specific to the qualifying reason for leave including:

  • 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 due to COVID-19 concerns, the name of the health care provider who advised the employee;
  • If the employee is caring for someone else, the employee must provide either the name of the government entity that issued the quarantine or isolation order affecting the individual, or the information of the health care provider who advised the individual to self-quarantine; or
  • If the employee is taking care of a child whose school is closed or childcare is unavailable due to COVID-19, then the employee must provide (1) The name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

For leave taken under the FMLA for an employee's own serious health condition related to COVID-19, or to care for the employee's spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.

The regulation explains that employers may need to obtain additional information or documentation to qualify for the tax credits as administered by the Department of the Treasury. Employers should consult with their tax advisors and the recently released IRS tax credit guidance for more information on this topic (See here https://www.irs.gov/​forms ; see also https://www.irs.gov/​2020-21 .)

Employers are required to maintain this information for four (4) years, regardless of whether or not the leave was granted. If an employee provided oral statements to support his or her request for leave, the employer is required to document and retain such information for four years. Keep in mind that to the extent the employee voluntarily provides any doctor's notes or other health information, such information must be maintained in a file, separate from the employee's personnel file.

For the time being, it appears as though employers cannot require employees to provide notes from health care providers, copies of government orders or school closure notices, or other supplemental documentation, which is different from the DOL's initial guidance on the issue, which suggested that employers would be required to obtain that information in order to take advantage of the tax credits. 

Employers should develop any easy-to-use form, containing the above information, to provide to employees who are requesting this leave, or who provide sufficient information to the employer to suggest the need for leave under the FFCRA.

We will continue to keep you updated on any major COVID-19 related developments that impact the workplace. I f you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at   www.brgslaw.com .

Richard S. Rosenberg
Katherine A. Hren
Ballard Rosenberg Golper & Savitt LLP