How to document employee paid sick leave and FMLA requests under FFCRA

The new DOL FFCRA regs provide important rules for documentation of employee leave requests and recordkeeping. As a reminder, for the rest of the year, employees get up to 80 hours of paid sick leave for any of the following six reasons:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 

2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 

3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; 

4. The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 

5. The employee is caring for his or her son or daughter because the school or place of care of the employee’s son or daughter has been closed or is unavailable due to COVID-19 precaution; or 

6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employees can take up to 12 weeks of emergency FMLA (the last 10 weeks, paid) only for reason #5 above. Note that "paid" for FMLA and sick leave here is capped and only 2/3 pay for reasons 4-6. What documentation can an employer require?

For all reasons (1-6):

(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.

Plus reason-specific documentation for Reasons 1, 2, 3, and 5.

Reason #1

"Employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order."

Reason #2

"Employee must additionally 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."

Reason #3 (This regulation refers to Reason #3, but contextually, this certainly seems to match more with Reason #4 - perhaps a typo?). 

"Employee must additionally provide the Employer with either:

(1) the name of the government 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 selfquarantine due to concerns related to COVID-19."

Reason #5

"[A]n Employee must additionally provide:

(1) the name of the Son or Daughter 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 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."

Catchall

"The 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 Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs."

Recordkeeping

Employers must keep documentation for four years, including documentation of oral requests, rejected requests, and exemptions/exceptions. To claim the tax credit, employers are "advised" to maintain:

(1) Documentation to show how the Employer determined the amount of paid sick leave and expanded family and medical leave paid to Employees that are eligible for the credit, including records of work, Telework and Paid Sick Leave and Expanded Family and Medical 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 IRS Forms 7200 that the Employer submitted to the IRS;  

(4) Copies of the completed IRS Forms 941 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 IRS Form 941, and  

(5) Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.