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).

A Caution About “Paperwork”

The initial request for emergency paid sick leave or expanded FMLA leave does not require the requesting employee to fill out a form or immediately provide any other written documentation. The request can initially be oral and can’t be denied because the employee has not submitted the necessary written documentation. A relative or other responsible party informing the employer is sufficient to trigger the leave—especially if the requesting employee is so sick that he or she can’t communicate with the employer.

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

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:

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:

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

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:

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:

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:

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