Final Rule Clarifies FFCRA Paid Sick Leave and Emergency Leave Obligations

On Monday, April 6th, the United States Department of Labor (DOL) released a final rule in the Federal Register interpreting the emergency paid sick leave (EPSL) and emergency family & medical leave (EFML) provisions of the Families First Coronavirus Response Act (FFCRA or Act). This latest rule offers more clarification into different parts of the Act, most notably requirements for proper documentation, recordkeeping, and exemption rules. Documentation There are different kinds of documentation that employers should require employees to submit depending on the reason for leave. If an employee is applying for leave under the EPSL provisions of the FFCRA, which allows for two weeks of paid leave, employees must provide:

• A signed statement containing their name;
• The date leave requested;
• The COVID-19 qualifying reason for leave; and
• A statement that they are unable to telework or work because of the COVID-19 reason.

Employees must also provide additional documentation based on the reason for leave:

• If the employee is under quarantine, they need to provide the name of the government entity or health care provider that issued the quarantine order.
• For leave to care for a child due to closure of school or daycare, documentation must include the name of the child being cared for, name of the school or child care provider and statement that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.
• For the care of an individual, the documentation needs to include the name of the government entity or isolation order that the individual is subject to, or the name of the health care provider advising the quarantine due to COVID-19 reasons.

Employees applying for leave under the EFML provisions, which allow 12 weeks of paid leave, need to provide the following:

• For leave to care for their child due to closure of school or daycare, employees must include the name of child being cared for, name of school or child care provider and that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.
• For leave taken for an employee’s own serious health condition related to COVID-19, or that of employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, normal FMLA requirements apply.

Small Employer Exemption The DOL’s latest Final Rule also clarifies the small business exemption included within the FFCRA. The exemption includes such requirements as:

• It’s limited to small private employers with less than 50 employees.
• Employers should document the facts and circumstances to justify the denial of leave to employees and retain with its records. This documentation does not have to be sent directly to the DOL, but should be retained in the event of an audit or investigation.
• FFCRA paid sick leave may be denied if the leave would jeopardize the viability of the business as a going concern. Permissible reasons for denial of leave as listed in the final rule include having business expenses and obligations exceeding business revenues; lack of available qualified workers to perform the duties of the employee requesting leave; and when the employee’s leave would jeopardize the continuity of the business due to their specialized knowledge and abilities.

Recordkeeping The Final Rule also states that an employer is required to retain all documentation provided by employees for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain that information also for four years. If an employer denies an employee's request for leave pursuant to the small business exemption, as mentioned earlier, the employer must document its authorized officer's determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years. The Rule also explains what documents the employer should create and retain to support its claim for tax credits, from the Internal Revenue Service (IRS), including Form 7200 and Form 941. That tax credit documentation should also be kept for four years.