Employee Notice under the FFCRA

Happy Monday. The DOL and IRS have provided guidance on what kind of notice and documentation: (i) an employee must provide to take FFCRA sick leave and leave to care for a child whose school or daycare is closed because of Covid-19 (Childcare Leave); and (ii) an employer must maintain to obtain a tax credit for paid sick leave and/or Childcare Leave paid to employees.

DOL employee notice requirements depend upon whether an employee is taking sick leave to care for a child/Childcare Leave or is taking leave for one of the other permitted reasons:

  • Where an employee is taking sick leave that is not Childcare Leave an employer may require an employee to follow reasonable notice procedures after the first workday (or portion thereof) for which an employee takes paid sick leave. Whether a procedure is reasonable will be determined under the facts and circumstances of each particular case.
  • Where an employee is taking Childcare Leave, if the leave is foreseeable, an employee must provide the employer with notice of such Childcare Leave as soon as practicable.

An employer may not require advance notice from an employee, and notice may only be required after the first workday (or portion thereof) for which an employee takes paid sick leave or Childcare Leave. After the first workday, it will be reasonable for an employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.

If an employee fails to give proper notice, an employer should give the employee notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.

Means and Contents of Notice:

Generally, it will be reasonable for an employer to require oral notice and sufficient information for the employer to determine whether the requested leave is paid sick leave or Childcare Leave. It will also be reasonable for the employer to require the employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

An employee is required to provide documentation containing the following information prior to taking paid sick leave or Childcare Leave:

  • 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.

In addition:

  • To take paid sick leave because an employee is subject to a quarantine or isolation order, the employee must provide the employer with the name of the government entity that issued the quarantine or isolation order.
  • To take paid sick leave because an employee has been advised by a health care provider to self-quarantine, the employee must provide the employer with the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID–19.
  • To take paid sick leave because an employee is experiencing symptoms of Covid-19 and seeking a medical diagnosis, the employee must provide the employer with either:
    • The name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or
    • The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID–19.*
  • To take Childcare Leave, an employee must also provide:
    • The name of the Son or 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 Childcare Leave.

*Note, the DOL regulations, as issued, omit specific reference to documentation needed where leave is taken to care for an individual who is subject to a quarantine/isolation/self-quarantine order (although the text quoted above indicates what an employee should provide to an employer in this circumstance).

The DOL regulations also provide that an employer may also request an employee to provide such additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA.

The IRS website currently states as follows with respect to sick leave or family leave (Childcare Leave) credits:

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 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 means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee 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.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, 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 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.*

https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs#how_to_claim

*Note, the DOL has adopted the FMLA definition of a son or daughter for the FFCRA: a “son or daughter” is the employee’s own child, which includes an employee’s biological, adopted, or foster child,  stepchild, a legal ward, or a child for whom the employees is standing in loco parentis. A “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. The IRS regulations provide that where Childcare Leave is for a child over 14, there must be “special circumstances requiring the employee to provide care.”  To date, I have not seen anything to reconcile these definitions.

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