What Employers Should Require When Employees Request FFCRA Leave

On April 1, 2020, the Department of Labor issued regulations addressing paid leave under the Families First Coronavirus Response Act (see 29 CFR 826, found here). The IRS has also recently issued FAQs to address the COVID-19-related tax credits. 

Based on these two sources of information, employers should take note of what they need to request from employees to substantiate the need for leave and what they will need to justify efforts to secure applicable tax credits. 

For those employers to whom the FFCRA applies, if an employee is requesting paid sick leave to cover an absence related to a government isolation order, self-quarantine as advised by a health care provide for themselves or another, or the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, the employer can and should request the following: a statement from the employee that includes the name of the governmental entity ordering quarantine or medical documentation from the health care provider advising self-quarantine or testing for symptoms, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

If the employee is requesting paid sick leave or FMLA leave for child care issues, the employer can and should request the following: statement from the employee that includes the name and age of the child (or children) for whom care is being provided, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave.  Additionally, if the leave is based on the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, the employer should also request a statement identifying the special circumstances that require the employee to be off work to provide care to that child.

The FFCRA does not limit the child care leave to care only for children under the age of fourteen.  However, the IRS appears to be suggesting that it will limit the tax credit to only those situations where the children are 14 or younger or otherwise are not capable of self-care.

If you have questions about this or other employment issues related to the FFCRA, please contact a member of Nyemaster’s Labor and Employment Department.