No Forms, But You Are Still Entitled to Documentation from Employees Taking Federal Paid Sick Leave and/or Expanded FMLA Leave

The U.S. Department of Labor (DOL) has issued regulations under the Families First Coronavirus Response Act (FFCRA). These regulations provide guidance regarding the documentation required to support an employee’s request for paid leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). To be clear, these Acts are subdivisions of the more comprehensive FFCRA.

Prior to the issuance of these regulations, there had been some speculation that the DOL would create forms for employees to complete in order to be eligible for the benefit. But no such forms were forthcoming. The regulations provide that the employee’s documentation requirements for paid sick leave under the EPSLA or expanded family and medical leave under the EFMLEA, are as described below.

For both the EPSLA and the EFMLEA , employees are required to provide the following documentation/information to their employer:

• 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.

For EPSLA leave involving an employee’s own condition, the employee must also provide the employer with:

• The name of the government entity that issued the Quarantine or Isolation Order to the employee, or
• The name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID–19.

Likewise, for an employee to take such leave to care for another individual who has been issued a Quarantine or Isolation Order or who has been advised to self-quarantine by a health care provider, the employee must also provide the name of the government entity that issued the Order or the health care provider who advised the self-quarantine.

When the reason for the leave is to care for the employee’s son/daughter displaced from school or daycare due to COVID-19, the employee must additionally provide:

• The name of the son/daughter being cared for;
• The name of the school, place of care, or child care provider that has closed or become unavailable; and
• 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 Expanded Family and Medical Leave.

Since these regulations were issued, the Internal Revenue Service (IRS) has published some additional informal guidance on this topic. Specifically, the IRS has noted 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 …. [and] with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.” (See https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.)

Employers should carefully document all the relevant information supporting the requested leave. While an employer can request that the employee provide the information in writing, the regulations seem clear that an employee may provide an oral statement. In either case, employers should reduce the information in writing and retain it for at least four years (as recommended by the IRS). Please note that if an employer receives medical information about the employee (whether in the form of a doctor’s note or health department order of quarantine, etc.) the documentation must be kept in a confidential medical file for the employee, in accordance with the confidentiality requirements of the Americans with Disabilities Act.

If you have any questions regarding these FFCRA documentation issues, please feel free to contact Mike Dodd at mldodd@ferrarafirm.com or at one of the phone numbers listed below.