Documentation requirements for emergency paid sick leave and expanded FMLA leave

We shouldn’t expect that the Government to ever establish a program without requiring paperwork. So this post concerns exactly that: the paperwork or documentation required to comply with the requirements of the Families First Coronavirus Response Act (FFCRA or Families First Act), as required by the temporary regulations issued by the U.S. Department of Labor (DOL) on April 1, 2020 and as modified on April 9, 2020.

To understanding the documentation requirements, return to those “triggers” we identified in earlier posts. In other words, the six situations that require a small business with fewer than 500 employees to comply with this act:

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 healthcare 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 is subject to an order as described by trigger 1 or has been advised as described in trigger 2.
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
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 the Treasury and the Secretary of Labor.

Each one of these situations may actually require different forms of documentation. So we’re going to address the required documentation for each trigger. In addition to the employer keeping a record of this information, the employee requesting paid sick leave or expanded FMLA leave must provide this information to the employer (whether in oral or written form).

Obviously, regardless of which trigger is involved, an employer must have a record of the following information for any of the six triggers:

• Name of employee.
• Date(s) when leave was requested.
• Qualifying reason for leave.
• Oral or written statement that the employee is unable to work or telework because of a qualified reason.

1. If the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, the employer should have a record of this additional information:

• Name of governmental entity that issued the quarantine or isolation order.

2. If the employee has been advised by a healthcare provider to self-quarantine because of concerns related to COVID-19, the employer should have a record of this additional information:

• Name of the healthcare provider who advised the employee to self-quarantine because of concerns about COVID-19.

3. If the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis, the employer should have a record of either—

• Name of governmental entity that issued the quarantine or isolation order.
• Name of the healthcare provider who advised the employee to self-quarantine because of concerns about COVID-19.

4. If the employee is CARING FOR an individual who is subject to an order as described by trigger 1 or has been advised as described in trigger 2, the employer should have a record of this additional information:

• No additional documentation clearly required by the new regulations.
• See Section 826.20(a)(5).
• Although the new regulations don’t specify required information, a page on the website of the Internal Revenue Service (IRS) indicates that if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee requesting leave are necessary for the employer to be eligible for the applicable tax credits. Under the new rules, the only persons who fit into that category are the children of the employee (see trigger 5) or the people described in the next paragraph.

Under this trigger, paid sick leave is only available to an employee who is taking care of an immediate family member, a person who regularly resides in the employee’s home, or person with similar relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined. In other words, under this trigger, an “individual” does not include a person that the employee has no personal relationship with. See Section 826.20(a)(5).

5. If the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions, the employer should have a record of this additional information:

• Name of son or daughter being cared for.
• Name or school or place of care that is closed or childcare provider who is unavailable.
• Statement 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 expanded FMLA leave.
• If the child is over 14 years of age, a statement that explains why parental supervision is necessary. [FN1.]

6. If the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor, the employer doesn’t have to get any additional information. The “substantially similar condition” has yet to be defined, but “stay tuned” to the Third Shift Employment Law Blog because the new regulations indicate that the substantially similar condition may be defined at any point during the effective period of the law; that is, April 1 to December 31, 2020. See Section 826.20(a)(1)(vi).

Tax credits and such

At Section 826.100(f), the new regulations require the employee provide the information needed to get the tax credits provided by the Families First Act. If the employee refuses to provide that information, the employer does not have to provide leave.

The temporary regulations direct the employer to a page on the IRS website for a discussion of these requirements. The answers are found at questions 44 and 45.

First, the answer to question 44 on this page makes it clear that all of the information we’ve identified earlier in this blog post is necessary to get tax credits.

Second, there is some additional required information identified in question 45, which we have summarized here:

• Employer calculations of time and pay for paid sick leave and family leave.
• The amount of time taken and wages paid.
• Work records, including telework records.
• Documentation of how the employer determined the amount of qualified-health-plan expenses that the employer allocated to wages.
• Copies of any completed IRS Forms 7200 that the employer submitted to the IRS. This form is entitled “Advance of Employer Credits Due To COVID-19.”
• Copies of the completed Forms 941 that the employer submitted to the IRS. This form is entitled “Employer’s Quarterly Federal Tax Return.” If the employer uses a third party to file Forms 941, the employer needs to have a copy of records submitted to the third party for this purpose.

Next steps

1. Employers should inform their human resources personnel and their accounting departments of these recording-keeping requirements.
2. Employers may also find it useful to develop forms that ask for the required information. We suggest a form for each trigger (1 through 5) may be the most helpful.
3. If the employee can’t fill out a form or otherwise provide the information in a written form, the employer should complete the form or record the information for the employee so that the employer can include it in the employer’s records.
4. As always, keep any private health information about the employee in a separate file from the employee’s regular personnel file.

FN1:  See last paragraph at question 44. FFCRA Regulation § 826.100(f) requires employees to provide the employer with the information necessary to receive tax credits.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2020