The Families First Coronavirus Response Act requires most employers to (1) expand emergency paid leave under the Family and Medical Leave Act and (2) to provide Emergency Paid Sick Leave in six qualifying instances. In order to assist employers in interpreting and applying the provisions the Act, the U.S. Department of Labor recently issued regulations.
The regulations detail, among other things:
- Definitions of terms used in the Act, including the term “employer,” “telework” and the phrase “subject to a quarantine or isolation order”;
- Information to assist in the application of the qualifying reasons for Emergency Paid Sick Leave;
- Exemption requirements for employers with fewer than fifty (50) employees;
- Information related to allowing and calculating intermittent leave (i.e. leave taken in separate periods of time, rather than in one continuous period);
- Information related to employer notice provisions;
- Document retention requirements for employers related to leave requests and to claim tax credits; and
- Provisions related to the enforcement of the Act.
The Department of Labor’s regulations clarify that certain documents must be provided to and retained by employers in connection with leave requests. All employees, regardless of the reason for seeking leave, must provide their employer a signed statement containing:
- The employee's name;
- The date(s) for which leave is requested;
- The coronavirus-qualifying reason for leave; and
- A statement that the employee can't work or telework because of this reason.
Further, the employee may be required to provide additional information or documentation to the employer, depending on the reason leave is being sought, including (but not limited to) the following:
- An employee seeking leave because they are subject to a federal, state or local quarantine or isolation must also provide their employer the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
- An employee seeking leave because they are self-quarantined must also provide their employer the name of the health care provider making the recommendation to quarantine.
- An employee caring for an individual who is seeking leave because of such care must also provide their employer either the government entity that issued the quarantine or isolation order or the name of the health care provider who advised the individual to self-quarantine.
- An employee seeking leave under the FMLA or the Emergency Paid Sick Leave because the employee is caring for the employee’s child(ren) whose school has been closed or place of care is unavailable must also provide their employer:
- The name of the child being cared for;
- The name of the school, place of care or childcare provider that closed or became unavailable; and
- A statement representing that no other suitable person is available to care for the child during the period of requested leave.
The regulations clarify that regardless of whether the leave was granted or denied to the employee, employers are required to retain all documentation and information submitted by employees for at least four years.
Employers are further permitted to request of their employees any other supporting documentation needed to support a request for the tax credits provided for under the Act and this documentation should also be retained by the employer for at least four years.
As you receive requests for leave from your employees, we encourage you to consider each request on a case-by-case basis, ensure each employee meets the qualifying factors for leave before leave is awarded or denied, and document each leave request, including your communications with employees by e-mail or orally, and retain all documentation on these matters for a minimum of four years.
Feel free to reach out to Lewis Glasser if you have questions or need assistance as you continue business operations during the COVID 19 health crisis or are in need of assistance in understanding and implementing the provisions of the Act and the new regulations that interpret the Act.
Webster J. Arceneaux, III
Lewis Glasser PLLC
(O) 304.345.2000 (ext. 1006) / (D) 304.414-9006
Lori D. Counts-Smith
Lewis Glasser PLLC
(O) 304.345.2000 (ext. 1017) / (C) 304.542-1941
Lewis Glasser PLLC
304-345-2000 / lewisglasser.com/covid-19-resources
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