Under the Families First Coronavirus Response Act, covered employers are now required to provide Paid Sick Leave or Expanded Family and Medical Leave to employees affected by the COVID-19 public health emergency. (See our prior coverage of the paid leave under the Families First Act.) Recently, the Department of Labor (DOL) and the Internal Revenue Service (IRS) provided guidance to employers about what notice and supporting documents employees must provide employers to obtain such leave—presuming employees qualify. Based on the above-referenced guidance, below we address common questions on the notice and documentation requirements.
*Please note that this article presumes a general familiarity with the Paid Sick Leave or Expanded Family and Medical Leave provisions of the Families First Act. For a refresher on those provisions, please review the blog post linked above.
If an employee is sick and wants to use the new Paid Sick Leave, can an employer require them to give notice?
Yes, employers may require that employees follow reasonable notice procedures when taking Paid Sick Leave.
What would be considered reasonable notice procedures?
Absent unusual circumstances, what is reasonable will depend on the facts and circumstances of each situation. Generally, it will be reasonable for an employer to require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave.
How soon should an employee provide notice of the need for leave?
Although the DOL encourages employee to provide notice as soon as practicable, employees can provide notice up to the day after the need becomes apparent.
What if the employee fails to give notice?
An employer should notify the employee that they failed to give notice. Before denying the leave request, the employer should provide the employee a chance to submit the required information and documentation.
Who can give the notice: the employee or someone on their behalf?
An employee or an employee’s spokesperson (e.g., spouse, adult family member, or another responsible party) – if the employee is unable to do so personally – can notify an employer about the need for leave.
What should this notice contain?
It is reasonable for an employer to require verbal notice along with enough information to determine if the requested leave qualifies for either Paid Sick Leave or Expanded Family and Medical Leave.
Can an employer require documentation from the employee to support the need for leave?
Yes, according to DOL guidance, an employer may require documentation but only the documents identified in the regulations.
What information and documents may an employer require from an employee?
Based on current guidance from the DOL and the IRS, an employer can request the following information and documents to support a request for leave:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave;
- An oral or written statement that the employee is unable to work, including through telework, because of the qualified reason for leave; and,
- Depending on the qualifying reason for the leave, the employee must also provide the following information or documents:
- If the leave is due to a qualifying quarantine or isolation order, then the employee must provide the name of the federal, state, or local government entity that issued such order;
- If the leave is because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then the employee must provide the name of the physician that issued the self-quarantine guidance;
- If the leave is because the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis from a health care provider; it is uncertain what additional information an employee must provide since the regulations, at the moment, do not speak to this issue.
- If the leave is because the employee caring for an individual who is subject to a qualifying quarantine or isolation order, then the employee must provide the name of the federal, state, or local government entity that issued such order;
- If the leave is because the employee caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then the employee must provide the name of the physician that issued the self-quarantine guidance;
- If the leave is because the employee is caring for his or her child whose school or child care options have been closed or made unavailable for any time related to COVID-19, then the employee must provide:
- The name of their son or daughter being cared for;
- The name of the school, place of childcare, or childcare provider that has closed or become unavailable;
- 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; and,
- Concerning 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 such care.
Can an employer authenticate the information supporting the employee’s request for leave?
The newest DOL regulations do not directly address this question. However, because the new laws expand the FMLA, there is an argument that DOL guidance on medical certification under the regular FMLA would apply to these new leaves—albeit the original regulations are not completely analogous.
Under the original regulations, employers’ representatives may contact a health care provider to clarify or authenticate that provider’s certification for the need for leave. It is important to note that a human resources professional, a leave administrator, or a management official must be the one to make the contact. An employee’s direct supervisor should never contact the employee’s health care provider to obtain authentication. However, to properly conduct an authentication, employers’ representatives need to provide the health care provider with a copy of the certification and confirming that the information contained on the certification form was completed or authorized by the health care provider who signed the document.
With the Paid Sick Leave or Expanded Family and Medical Leave, there is no signed certification that employers may authenticate in a manners similar to the original regulations. It may be that an authorized employer representative may contact one of the entities or individuals to verbally confirm that the information the employee provided because those steps match the spirit of the prior regulations—presuming no additional questions are asked.
Even if that is the case, there are likely practical concerns. Government agencies and health care providers are already taxed during this public health emergency; therefore, obtaining a timely response may be challenging.
What should an employer do if the employee provides the notice and supporting information verbally?
Employers likely should prepare a memorandum for the employee’s file confirming all of the information listed above along with the name of the employer’s representative who verbally received the notice and supporting information. Employers could then follow up with the employee for any further supporting documents to allow employers to obtain applicable tax credits.
Are there any other documents will an employer needs to maintain?
Yes, according to the IRS, it appears that employers—to support any tax credits—will need to maintain the records of the written or verbal statements described above. Additionally, the employer should maintain:
- Documents showing how the employer determined the amount of qualified sick leave or family leave wages paid to the employee—these documents would likely include the supporting payroll data along with a memorandum showing how the wage calculations were derived. (Remember that employees do not necessarily receive full compensation while on Paid Sick Leave or Expanded Family and Medical Leave under the Families First Act.)
- Documents showing how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. (See IRS guidance at Question 31 for methods to compute this allocation.)
- Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, the employer submitted to the IRS.
- 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).
How long will an employer need to maintain these documents?
An employer should maintain these records for at least four years.
Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.