Tag: Families First Coronavirus Response Act

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Biden calls for extension and expansion of FFCRA

COVID-19, coronavirus, public health crisis

As you should hopefully be aware, the Families First Coronavirus Response Act (FFCRA), the federal law that provided paid leave to employees for COVID-related absences, expired on Dec. 31, 2020, with an option for employers to voluntarily expand leave through March 31, 2021. The problem, however, is that while this leave has expired or will soon expire, COVID-19 is not expiring any time soon.

Help, however, may soon be on the way, as part of President-elect Biden’s America Rescue Plan. A key part of that plan is a significant expansion of the FFCRA.

What would change?
  • The FFCRA would be reinstated and extended through Sept. 30, 2021.
  • The 500-employee cap on coverage would be lifted and all employers, regardless of size, would be required to provide paid leave for covered COVID-related absences.
  • The exemptions for health care workers, first responders and small employers would be eliminated.
  • The total leave entitlement would be expanded to 14 weeks.
  • Employers with less than 500 employees would be reimbursed for this paid leave through an extension of the already existing payroll tax credit. Employers with 500 or more employees would not receive the tax credit.
I applaud this expansion, which is sorely needed as we navigate this virus until we reach a vaccination critical mass. I also hope it is a step toward more broad-based paid sick and family leave for employees, an issue on which this country sadly lags behind every other industrialized nation in the world.
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Coronavirus update: Congress must extend the FFCRA

Capitol Building, joint session of Congress

The Families First Coronavirus Response Act, the federal law that provides paid sick and family leave to employees for COVID-19-related absences, ends in 29 days. By its terms, the law sunsets on Dec. 31.

On Dec. 1, news broke of a new coronavirus relief bill that Senate Majority Leader Mitch McConnell will put forward. It will include important measures such as the extension of unemployment insurance expansions for another month, another round of Paycheck Protection Program (PPP) small business assistance, and additional funding for the USPS, schools, testing, and vaccine distribution.

What doesn’t it include? Any extension of the FFCRA.

COVID-19 isn’t going to magically disappear on Dec. 31. If anything, we’ll be in the midst of the virus’s current surge and the situation will be worse and more dire come January 2021 than it is now. You will have more employees needing time away from work because of their own illnesses, the illnesses of family members, and the closure of their children’s schools. Yet, they will lack any federal protections for this time off.

Congress needs to extend the FFCRA now. Otherwise, millions of employees will be left without leave and without job protection as they and their families battle this virus.

Employers, you need to assume that the FFCRA is going away to start 2021 and spend some time over the next few weeks figuring out your own plan for your employees.

  • Will you grant your own paid sick and family leave in lieu of the federal benefit?
  • Will you merely rely on your existing PTO/vacation/sick leave benefits?
  • Will you grant unpaid leaves of absence but not offer any additional paid leave to employees?
  • Will you do nothing and force these employees out of your business?
These are difficult choices to make during difficult economic times. But you need to make them and you need a plan, as it appears that Congress will not provide one for you for 2021.
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COVID-19 and no-fault attendance policies

pointing, worker misclassification

Can you “point” an employee under a no-fault attendance policy for a coronavirus-related absence? For example, an employee sick with COVID-19 or awaiting test results, quarantined because of an exposure, or at home because a child needs care?

For the uninitiated, no-fault attendance policies operate by having workers accumulate “points” for missing work, arriving late or other attendance-related issues; after the accumulation of a pre-determined number of “points,” employees face discipline or even termination.

During the ongoing COVID-19 pandemic, these policies are not only unnecessarily cruel, but they also might be illegal.

Generally speaking, if a law protects the absence (i.e., the FMLA or the ADA), then it is unlawful under such law to assign a point under an attendance policy for the absence. While there have not been any such cases decided under the FFCRA, one can safely assume the same logic applies. Thus, for employers with less than 500 employees, it would be illegal to assign no-fault points for absences related to:

  1. A federal, state, or local quarantine or isolation order related to COVID-19;
  2. Self-quarantine or isolation related to COVID-19 based on the advice of a health care provider;
  3. The seeking a medical diagnosis for COVID-19 after experiencing symptoms;
  4. The caring for an individual subject to an order described in (1) or isolation/quarantine as described in (2); and
  5. The care for one’s child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19.
Even if the FFCRA does not protect an employee’s absence an employer must still consider whether some other law, such as the FMLA, ADA, or GINA, offers similar protection.
In other words, pointing employees for COVID-related absences is fraught with risk. It’s also unnecessarily cruel. We are all trying to do our part to halt the spread of this rapidly accelerating virus. This including isolating, quarantining, and taking care of others who are at risk or unable to care for themselves. This pandemic needs compassion and flexibility, not strict adherence to rigid policies.
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Inside the DOL’s changes to the final rule interpreting the FFCRA

COVID-19, coronavirus, public health crisis

The United States District Court for the Southern District of New York issued a decision in August holding that several provisions of the Department of Labor’s final rule interpreting the Families First Coronavirus Response Act are invalid. 

As explained previously, the FFCRA provides eligible workers of covered employers with Emergency Paid Sick Leave and Emergency Family and Medical Leave for various reasons related to the COVID-19 pandemic. 

Calling into question the DOL’s interpretation of these laws, the court found that the final rule’s (1) “Work Availability” requirement, (2) definition of “Health Care Provider” for purposes of determining who may be excluded from eligibility, (3) employer consent for intermittent leave requirement, and (4) documentation requirements — to the extent that they were a precondition to leave entitlement — were invalid. 

Also read: Leave management should be as simple as submit, approve and hit the beach

On Sept. 11, the DOL announced changes to its final rule in light of the decision, effective Sept. 16. The following is an overview of the changes to the Final Rule.

The “Work Availability” Requirement 

Under both the EPSL and EFML provisions of the FFCRA, eligible employees of covered employers are entitled to paid leave if they are “unable to work (or telework) due to a need for leave” for various COVID-19 related reasons. In implementing these provisions, however, the DOL has generally excluded from eligibility those employees whose employers do not have work for them.  

While the court determined that the language of the FFCRA itself did not allow this, the DOL disagreed, and expanded and clarified its position in the revised Final Rule. Among its reasons for maintaining its position, the DOL explained that removing the work-availability requirement would not serve the FFCRA’s purpose of discouraging employees who may be infected with COVID-19 from going to work (if there is no work to go to, an infected employee would not need leave). It could also lead to perverse results in that furloughed employees with a qualifying reason (who were not working) could be paid FFCRA benefits while their colleagues without a qualifying reason (who also were not working) would not. 

The DOL noted that EPSL and EFML are forms of “leave” and that employees who had no work to perform — i.e., were on furlough — do not require “leave,” as that word is commonly understood. 

Noting the FFCRA’s anti-retaliation provisions, the DOL emphasized that employers may not make work unavailable in an effort to deny leave. The DOL also pointed out that other COVID-19 relief measures — including the Paycheck Protection Program and expanded unemployment provisions of the Coronavirus Relief, Aid, and Economic Security Act — more appropriately address the needs of employees for whom no work is available. To address specific failings noted by the court, the DOL clarified that “work availability” is a requirement for all forms of leave under the FFCRA.

Also read: Time off policies promote convenience while enhancing engagement

The Definition of ‘Health Care Provider’

Under the FFCRA, employers may exclude from EPSL and EFML eligibility “health care providers” and/or “emergency responders,” the DOL definitions of which were expansive. While the definition of “emergency responders” was not addressed in its decision, the court held that the FFCRA’s unambiguous terms did not allow for the broad definition of “health care provider.” 

In light of the decision, the DOL has revised the definition of “health care provider” to match the definition in the FMLA, and include other employees who provide diagnostic services, treatment services, or other services that are integrated with and necessary to the provision of patient care. The DOL has updated its answer to Q&A #56, clarifying that “health care providers” who may be excluded by their employer from FFCRA eligibility include: 

  1. “Anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.” 
  2. “Any other person who is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” 
  3. Employees who do not provide direct heath care services to a patient but “are otherwise integrated into and necessary to the provision those services — for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition — are health care providers.”

This second group includes nurses, nurse assistants, and medical technicians.” It also includes “employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services.” 

The Q&A further clarifies that a person is not a health care provider merely because their employer provides health care services — i.e., IT professionals, building maintenance staff, cooks, or food service workers. 

Notably, the revised “health care provider” definition no longer permits the highest official of a state (i.e., the governor) to expand the definition to include any individual they determine is a health care provider necessary for that state. 

The definition of “emergency responders” — including the highest official’s ability to expand it — has not changed.  

Provisions Relating to Intermittent Leave

The DOL’s final rule allows employees to take EPSL and EFML intermittently “only if the Employer and Employee agree,” and even then, only under certain circumstances — i.e., when the employee’s use of intermittent leave will not risk the employee transmitting the virus to others. While the court recognized that the final rule’s restrictions on when an employee may use leave intermittently are consistent with Congress’s public health objectives, it rejected the blanket requirement of employer consent. The DOL disagreed, however, and reaffirmed its position that employer approval is needed to take intermittent FFCRA leave. 

While the FFCRA did not expressly permit or prohibit intermittent leave (in contrast to the FMLA, which expressly authorizes employees to take leave intermittently, but only under certain circumstances), the DOL reasoned that the employer-approval condition is consistent with the longstanding FMLA principle that intermittent leave, where foreseeable, should avoid “unduly disrupting the employer’s operations,” particularly when it is not medically necessary (e.g., bonding leave). 

Notably, the DOL clarified that the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis, because such leave would not be intermittent. In an alternate day or hybrid-attendance schedule, the school is physically closed with respect to certain students on particular days as determined by the school, not the employee. For the purposes of FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day, and thus intermittent leave is not needed because the school literally closes and opens repeatedly. 

This is distinguished from a scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule (in which case the use of leave would be intermittent and would require employer approval).

The Documentation Requirements 

The DOL’s final rule required that employees submit documentation to their employer prior to taking leave. The text of the FFCRA, however, requires only that employees give notice “as is practicable” for foreseeable EFML, and that they follow reasonable notice procedures for EPSL after the first workday or portion thereof that they receive paid sick leave.  

Recognizing these inconsistencies, the court held that the documentation requirements, to the extent they are a precondition to leave, are invalid. The DOL agreed with the court, and has thus revised the final rule to clarify that the documentation need not be given “prior to” taking EPSL or EFML. Thus, employers may require an employee to furnish as soon as practicable the required information and/or documentation discussed here.

In light of the foregoing, employers of health care providers in particular should familiarize themselves with the revised definition in order to ensure accuracy in determining which of its employees may be excluded from eligibility for EPSL and EFML. Employers who have relied on the previous “health care provider” definition to exclude employees from eligibility may wish to contact their attorney with questions about the revised definition and/or its impact on excluding such employees from FFCRA entitlements going forward. 

Additionally, to the extent employers were requiring documentation to support a request for EPSL and EFML prior to the leave, such processes must be revised to allow employees to provide such documentation “as soon as practicable.” 

Employers may continue to deny EPSL and EFML if there is no work available for the employee, and may continue requiring approval for use of EPSL and EFML on an intermittent basis, pursuant to the requirements of the revised final rule (and only if such intermittent use is for a permissible qualifying reason).

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41,214 reasons not to fire employees who request FFCRA leave

concerted activity
A San Jose, California, manufacturer has reached an agreement with the Department of Labor’s Wage & Hour Division to pay 17 employees $41,214 for wrongly denying their requests for paid coronavirus sick leave under the Families First Coronavirus Response Act. Specifically (and much worse than that description sounds), the employer terminated each of the 17 employees after they requested paid leave under the FFCRA.

According to the DOL, “The employer’s action resulted in a violation of the FFCRA.”

No kidding!
In announcing this settlement, the DOL reminds employers that they should call the agency for assistance with FFCRA compliance, that it has online educational tools to help avoid violations, that its website contains information to help employers understand the FFCRA, and that it published an FFCRA poster to explain the Act’s requirements.
All of these statements are true. But should an employer really need a website or a poster to tell it not to retaliate against employees who ask for paid leave under a federal statute? 🤦‍♂️
Small employers, if you’re not paying attention to the FFCRA, you should be. The Department of Labor certainly is.
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House proposes significant expansions to paid leave under Families First Coronavirus Response Act

warehouse workers, hourly employees
The House of Representatives on May 15 passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R.6800. Among other things, it proposes significant clarifications and expansions to the Emergency Family And Medical Leave and Emergency Paid Sick Leave provisions of the Families First Coronavirus Response Act.
What are these proposed changes?
Emergency Family And Medical Leave
  • Expands emergency FMLA coverage to all employers, not just those with less than 500 employees.
  • Expands the definition of “parent” to include foster parents, adoptive parents, stepparents, parents-in-law, a parent of a domestic partner, and someone who stood in loco parentis to an employee when the employee was a child.
  • Provides emergency FMLA to an employee who is —
    • self-isolating because of the employee’s own COVID-19 diagnosis;
    • obtaining a medical diagnosis or care if the employee is experiencing the symptoms of COVID–19;
    • complying with a recommendation or order by a public official with jurisdiction or a health care provider to self-isolate on the basis that the physical presence of the employee on the job would jeopardize the employee’s health, the health of other employees, or the health of an individual in the household of the employee because of the possible exposure of the employee to COVID–19 or because of the exhibiting of symptoms of COVID–19 by the employee;
    • caring for or assisting a family member (also defined in the amendments) because the family member is self-isolating because of a COVID–19 diagnosis, because the family member is experiencing symptoms of COVID–19 and needs to obtain medical diagnosis or care, or because a public official or health care provider makes a recommendation or order that the presence of the family member in the community would jeopardize the health of other individuals in the community because of the possible exposure of such family member to COVID–19 or exhibiting of symptoms of COVID–19; and
    • caring for a family member who is incapable of self-care because of a mental or physical disability or is a senior citizen, if the place of care for such family member is closed or the direct care provider is unavailable due to COVID–19.
  • Permits an employee to elect, but an employer cannot require, the substitution of paid time off for emergency FMLA.
  • Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
  • Prohibits an employer from requiring certification by an employee in support of an emergency FMLA leave to not earlier than five weeks after the date on which the employee takes such leave
  • Extends the sunset date of emergency FMLA from 12/31/2020 until 12/31/2021.
Emergency Paid Sick Leave
  • Clarifies that paid sick leave under the FFCRA must be offered in addition to any paid leave offered by an employer, and prohibits an employer from changing its policies to avoid providing any additional paid leave.
  • Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
  • Prohibits an employer from requiring certification by an employee for the need for paid sick leave for leaves less than three consecutive days of paid sick time, and further prohibits an employer from requiring such certification earlier than seven workdays after an employee returns to work.
  • Provides for a new allotment of 80 hours of paid sick leave if an employee changes employers.
  • Requires restoration of an employee to the same or equivalent position at the end of a period of paid sick leave.
  • Extends the sunset date of paid sick leave from 12/31/2020 until 12/31/2021.
Sen. Mitch McConnell has already said that this bill is DOA in the Senate in its current form but it’s unclear if this statement specifically referenced the FFCRA amendments. Stay tuned to see if any of these proposed amendments gain any traction in the Senate. I’ll keep everyone updated as this bill progresses.
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How do parents return to work without available child care?

Samsung service, child care, parent

Child care is the issue that has gotten the least attention in discussions about employees returning to work.

As states begin to slowly reopen and return employees to work, working parents are left wondering who will care for their children if schools, day cares and camps are closed.

The Families First Coronavirus Response Act provides working parents with some relief with its 12 weeks of paid child care-related leave. But that law has limits.
  1. It does not apply to businesses with 500 or more employees, and businesses with less than 50 employees can exempt themselves from the childcare-related leave provisions.
  2. It limits an employee’s leave allotment to 12 weeks, meaning that if an employee started taking childcare-related paid leave when the FFCRA took effect on April 1, he or she will exhaust their paid leave on June 24.
  3. It does not apply if there is anyone else available to care for an employee’s child(ren) during the employee’s working time.

And the FFCRA does not account for parents who are stretched the point of exhaustion, working their full workdays remotely, and then working another full workday managing child care-related responsibilities. Consider the following hypothetical from the New York Law Journal.

Maya is an investment banker in New York City and typically works a 10-hour day. Maya has a nanny care for her infant daughter while she is at the office. During this pandemic, Maya is forced to work at home and her nanny is unable to help. Maya now has to handle a 10-hour/day job using less-than-ideal remote access technology—her remote desktop does not operate as smoothly as her office computer; she has one screen on her home computer as opposed to three in her office; she does not have direct access to her assistant or her other staff; she does not have the full panoply of office supplies and other corporate-level printing and copying, etc. With all these hindrances, Maya must work 12 hours to accomplish the same work she previously did in 10. On top of that, she must care for her infant daughter all day, which conservatively involves approximately eight hours of direct, hands-on attention. For Maya to cover her responsibilities (minus any time for even a short break), she must work a 20-hour day. And, she must do this every day, indefinitely, until the circumstances of this pandemic change.

Or consider, for example, Ohio Gov. Mike DeWine, who on May 5 said that some K-12 schools are considering starting the 2020–21 school year on a split schedule. Half of a school’s students would attend in-person classes on Mondays and Tuesday, and the other half of Thursdays and Fridays. Students would distance learn on the days they aren’t in school in person.

This plan is great for helping schools manage social distance, but it’s terrible for working parents who are left scratching their heads figuring out who will help manage distance learning and otherwise watch their children on the days they aren’t in school, and who will provide child care after school.

What’s an employer to do?

1. Don’t discriminate. Family responsibility discrimination remains unlawful under Title VII. While federal law does not expressly include “family responsibility” as a protected class, the EEOC has long held that Title VII’s prohibits discrimination against parents as parents if you are treating some more favorably than others (e.g., dads better than moms, or men better than moms). There are also, a few states that expressly prohibit parental discrimination. If, for example, you have to make decisions about layoffs, you should be considering whether working parents are disproportionately included.

2. Consider accommodations to aid working parents. Work from home is already an accommodation, but there are others that could help here. Modified work schedules (which the Department of Labor favors in its FFCRA guidance), designated breaks, and the provision of additional work supplies such as laptops and printers could all ease the burden on parents working from home. Our goal here should be helping employees figure out solutions to get their job done, not harming employees (and the business) by erecting barriers that prevent it.
3. Finally, and most importantly, flexibility is key. Ohio’s Stay Safe Order mandates that manufacturers, distributors, construction companies, and offices allow employees to “work from home whenever possible.” If employees can work remotely, let them work remotely. Flexibility, understanding, and compassion is the best answer I can offer for the foreseeable future.
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I was (mostly) correct on the intersection between employer-provided paid leave and leave under the FFCRA

essential workers; workers' compensation, mask

Last week I took a stab at making sense of the messy and unclear rules surrounding the substitution of employer-provided leave (which, for the sake of simplicity, I’ll refer to as (“PTO”) for paid sick leave (“EPSL”) and expanded Family and Medical Leave (“EFMLA”) under the Families First Coronavirus Response Act.

I was (mostly) correct.

Also read: How to calculate PTO versus traditional sick leave and vacation policies

On April 21, the Department of Labor published its 5th set of FAQs discussing the FFCRA. Question 86 squarely addresses and clarifies the intersection between employer-provided paid leave and leave under the FFCRA.

1. An employer may not require that PTO run concurrently with—that is, cover the same hours as—EPSL.
2a. An employer may require that PTO run concurrently with the paid weeks of EFMLA. PTO that runs concurrently with EFMLA will enable the employee to receive 100 percent of his or her daily pay plus the EMFLA benefit (two-thirds of her or her regular rate of pay, capped at $200 per day and $10,000 in total). Note, however, that the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act, not for any concurrent PTO applied. Once an employee exhausts all available PTO, EFMLA is continued to be paid out of the statutory two-thirds rate.
2b. Alternatively, an employer and employee may agree to top off the two-thirds EFMLA pay to an amount equal to 100 percent of the employee’s regular pay. Again, the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act.
3. An employee may elect—but an employer may not require the employee—to take EPSL or PTO (but not both) during the first two weeks of unpaid EFMLA.

Crystal clear, right?

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Making sense of substituting employer-provided leave for EPSL and EFMLA under the FFCRA

employment law, labor law, overtime records

One of the more confounding sets of rules under the Families First Coronavirus Response Act is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave — the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”) — mandated by the Families First Coronavirus Response Act.

I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO.

Also read: The DOL’s Families First Coronavirus Response Act regulations contain some big changes

The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.

So let’s try to sort it all out.

1. An employer can never require an employee to substitute PTO for EPSL. The employee can elect that substitution, but it can never be forced by the employer.

2. If an employee is taking leave to care for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, the employee qualifies for both EPSL and EFMLA. It is the employee’s sole choice whether to use EPSL during the initial two unpaid weeks of EFMLA (for which both types of leave will run concurrently), or save the EPSL for later use for another qualifying reason (or, I suppose, tack it on after the expiration of the FMLA leave). An employer cannot force an employee to use EPSL during those initial two unpaid weeks of EFMLA.

3. Here’s where it gets tricky. When can an employer require an employee to use PTO during EFMLA? Section 826.23(c) of the regulations is the key provision.

Section 2612(d)(2)(A) of the FMLA shall be applied, provided however, that the Eligible Employee may elect, and the Employer may require the Eligible Employee, to use only leave that would be available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer’s existing policies, such as personal leave or paid time off. Any leave that an Eligible Employee elects to use or that an Employer requires the Eligible Employee to use would run concurrently with Expanded Family and Medical Leave taken under this section.

(Section 2612(d)(2)(A) of the FMLA permits an employer to require the substitution of PTO for FMLA leave.)

Also read: Coronavirus update: The mechanics of the tax credit for paid family and sick leave under FFCRA

What does this all mean? It means that an employer can require an employee to use available PTO during the unpaid portion of an EFMLA school closure of loss-of-child care coronavirus-related leave. If an employer so requires, the PTO runs concurrently with the EFMLA allotment.

4. An employer and employee can agree to “top-off” EPSL or EFMLA (that is, true up the employee’s pay through the substitution of PTO so that the employee earns his or her full pay). But the employer cannot require it.

All clear, correct? Or clear as mud?

Disagree with my interpretation? Drop a comment below and let’s try to figure it out together.

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Coronavirus update: The mechanics of the tax credit for paid family and sick leave under FFCRA

employment law, labor law, overtime records

One of the questions I have received the most since the passage of the Families First Coronavirus Response Act is how employers claim the tax credit available under the Act for paid leave provided to employees.

Late on March 31, the IRS published a detailed list of FAQs explaining all of the mechanics of this tax credit. I want to focus on the key employment law piece of these FAQ, how an employer should substantiate its eligibility for tax credits, i.e., the documentation you need to keep.

The IRS discusses this important issue in Questions 44–46. I’ll break it all down for you here.
What information should an “Eligible Employer” (a business with fewer than 500 employees) receive from an employee to substantiate eligibility for the sick leave or family leave tax credits?
 
The IRS says that an employee’s leave request must be in writing and must include:
  1. The employee’s name;
  2. The date(s) for which leave is requested;
  3. A statement of the coronavirus related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by telework, for such reason.

Also read: A Q&A and the DOL’s FFCRA notice

Additionally, for a leave request based on a quarantine order or self-quarantine advice (the employee’s or someone else’s for whom the employee is providing care), the employee’s statement should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, 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.

For a leave request based on a school closing or child care provider unavailability, the statement from the employee should include:

  1. The name and age of the child (or children) to be cared for;
  2. The name of the school that has closed or place of care that is unavailable; and
  3. 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.
Also, note that there is a cut-off age at age 13 for care during daylight hours. An employee unable to work or telework during daylight hours because of a need to care for a child age 14 and older must also provide a statement that special circumstances exist requiring the employee to provide care.
Additionally, for all paid leave under the FFCRA for which an employer claims a tax credit, the employer must also provide:
  1. Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
  3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
  4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

Employers must keep these records for at least four years after the date the tax becomes due or is paid, whichever comes later, and should be available for IRS review.

I encourage all employers to have a conversation with their accountant and/or tax lawyer before filing your next quarterly payroll taxes to make sure you are claiming this exemption correctly.