FFCRA Update

April 7, 2020

Now that the FFCRA has taken effect and its regulations have been issued, a few additional questions have been answered:

1. Can my employee take intermittent sick leave or emergency FMLA leave?

This is confusing, but the answer is basically only by agreement, unless it can’t be taken at all.  First, you have to agree to an intermittent schedule.  If you don’t agree, then the employee cannot take this leave on an intermittent basis.  Second, if your employee is not teleworking, then the only reason they can take intermittent leave is to care for a child whose school or daycare has been closed.  Otherwise, they cannot take leave on an intermittent basis due to the concern that they may infect co-workers when they return to work.  Unless they are teleworking, in which case, they can take intermittent leave for any covered reason, provided you agree.

2. What kind of documentation can I require from my employee to support their leave request?

This is also confusing because different federal agencies have given different guidance.  For example, the CDC has stated that you cannot require a doctor’s note to support a request for leave.  The DOL’s position is slightly different.  They advise that you should collect the following information: : (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.  Depending on the reason for leave, the employee will also need to supply information specific to the reason, for example, the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID–19 or the name of the governmental entity that has issued the quarantine or isolation order.  You can also ask for material to support your request for a tax rebate or refund. Finally, the IRS has issued guidelines regarding what documentation you should retain in order to support your payroll tax rebate or refund.  In addition to the above, they also state that you should request your employee to submit “written support” of the need for leave in addition to information set forth above.

We recommend that for a health care provider related need for leave, that in addition to the information set forth above, you request a doctor’s note to support the need for leave.  If the employee cannot supply that, then document that as well.  For a school or governmental related need for leave, you should request that they submit something from the school or governmental entity, as applicable, that supports the need for leave, such as a news story or an email. You should also have leave request forms that once filled out, will contain all the necessary information as well as the employee’s certification of the need for leave.

Of course, if you are a private employer with over 500 employees, the FFCRA does not apply to you.  And if you have less than 50 employees, the FFCRA may not apply either due to the small business exemption.

Stay safe and keep the course.  And please let us know if we can be of help.

Thanks, Jack, Elizabeth and Jim