On April 1, 2020, the U.S. Department of Labor Wage and Hour Division posted a temporary rule issuing regulations pursuant to the Family First Coronavirus Response Act (FFCRA). The regulations outline, among other issues, notice and documentation requirements that an employee must provide to his or her employer in order to receive benefits from the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).
In order to qualify for leave under the EPSLA or EFMLEA, the employee must provide a signed statement that includes: (1) the employee’s name; (2) the date or date range that the employee is requesting leave for; (3) the COVID-19 related qualifying reason; and (4) a statement providing that the employee is unable to work or telework because of the qualifying COVID-19 reason. There are additional documentation requirements that depend on the qualifying reason for which the employee seeks leave.
Requirements Under the Emergency Paid Family Leave Act
There are six qualifying reasons that allow an eligible employee to take paid sick leave under the EPSLA. It is important that employers maintain documentation that supports each employee’s leave, in order to receive the appropriate tax credits. Below is a list of the qualifying reasons pursuant to the EPSLA and the documentation required.
- The employee is subject to a Federal, State or local quarantine or isolation order. The employee must provide his or her employer the name of the governmental entity that issued the quarantine or isolation order. This may include a state or county level “shelter-in-place” or “stay-at-home” order issued by the governor or the local Public Health Official where the employee lives.
- The employee is advised by a health care provider to self-quarantine due to COVID-19 concerns. The employee must provide his or her employer with the name of the health care provider who advised them to self-quarantine due to concerns related to COVID-19. The advice to self-quarantine must be based on the health care provider’s belief that the employee has, or may have, COVID-19 or is particularly vulnerable to COVID-19.
- The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis. Symptoms that could trigger this reason include, but are not limited to, fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the CDC. Paid sick leave is limited to the time the employee is unable to work because he or she is taking the steps to obtain a medical diagnosis. For example, this may include the time the employee spends making, waiting for, or attending an appointment to test for COVID-19. There is no specific documentation required for this reason.
- The employee is caring for an individual subject to a federal, state or local quarantine or isolation order, or is caring for an individual who has been advised by a health care provider to self-quarantine due to COVID-19 related concerns. The employee must provide the employer with either (1) the name of the governmental entity that issued the quarantine or isolation order to which the individual being cared for is subject; or (2) the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19. These individuals must meet the same requirements of reason (1) or (2) respectively, for the employee to qualify for leave. Additionally, the individual being cared for must be an immediate family member, roommate, or similar person with whom the employee has a relationship with that would generally require the employee to care for that person if he or she self-quarantined or was quarantined.
- The employee is caring for his or her child if the child’s school or place of care is closed, or the child’s usual care provider is unavailable due to COVID-19 related reasons. The employee must provide the employer with (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that has closed or become unavailable; and (3) a representation that no other suitable person (co-parent, co-guardian, or the usual child care provider) is available to provide the care the employee’s child needs. Documentation that the school, place of care or child care provider has closed or is unavailable due to COVID-19 may take the form of a posting on the applicable government, school, or day care website, an article or story in the local newspaper, or an email to the employee from the school or child care provider.
- The employee is experiencing a substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor. There is no documentation required for this reason.
Emergency Family and Medical Leave Expansion Act
Unlike with the EPSLA, there is only one qualifying reason that will allow an employee to take leave pursuant to EFMLEA. The employee must be caring for his or her child whose school or place of care is closed, or the child’s usual care provider is unavailable due to COVID-19 related reasons. Similar to the above-mentioned qualifying reason 5, the employee must provide the employer with (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that has closed or become unavailable; and (3) a representation that no other suitable person (co-parent, co-guardian, or the usual child care provider) is available to provide the care that the employee’s child needs. Additionally, documentation that sufficiently provides notice that the school, place of care or child care provider has closed or is unavailable due to COVID-19 may take the form of a posting on the applicable government, school, or day care website, an article or story in the local newspaper, or an email to the employee from the school or child care provider.
The employer may also request additional documentation as needed to support its request for tax credits in accordance with the FFCRA. An employer should carefully follow the documentation requirements listed above because the employer must be able to substantiate each employee’s claimed leave in order to receive all of the applicable credits.
The Employment, Labor and Benefits team at Larkin Hoffman is available to help. Please reach out for additional guidance.