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FFCRA documentation requirements for employers: What to ask for, what to document, and what to keep    
By Jill Luft, Lauren Harris, Daniel Ritter on April 14, 2020 at 12:15 PM

Almost two weeks after the effective date of the Families First Coronavirus Response Act (FFCRA), many employers are still not certain what information and documents they should obtain from employees who request emergency paid sick leave and/or expanded family and medical leave. To recap, there are six reasons an employee can take emergency paid sick leave.

A covered employer must provide such leave when an employee is unable to work or telework for any of the following reasons:

  1. Employee is subject to a government-issued quarantine or isolation order related to COVID-19;
  2. Employee has been advised to self-quarantine by a health care provider due to concerns related to COVID-19;
  3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. Employee is caring for an individual subject to a government-issued quarantine or isolation order or self-quarantine directed by a health care provider as described above in 1 and 2;
  5. Employee is caring for his or her child whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19; or
  6. Employee has a substantially similar condition specified by the U.S. Department of Health and Human Services. (No substantially similar condition has been identified as of yet).

There is only one qualifying reason that an employee can take expanded family and medical leave: The employee is unable to work or telework due to a need to care for his or her child whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.

The documentation requirements are slightly different depending on the type of leave the employee is seeking and, for paid sick leave, the reason giving rise to such leave. The DOL identifies the documentation that is required from an employee seeking to take the leave (see 29 CFR§ 826.100(a)-(e)) and then states the employer may also ask an employee “to provide such additional material as needed for the employer to support a request for tax credits” (see 29 CFR§ 826.100(f)) and references the IRS publication on COVID-19 tax credits. We have combined the requirements and added some options in an easy-to-follow format below.

Emergency paid sick leave

Both the DOL and IRS require the following four categories of documentation to substantiate emergency paid sick, regardless of the reason:

  • Employee’s name;
  • Date(s) leave is requested;
  • Support for the COVID-19 related reason for the paid sick leave requested; and
  • A statement that the employee is unable to work or telework due to that reason.

While the employee can provide this information orally and the employer document it, employers should strongly consider getting this information from employees in writing or providing employees with a written leave application to complete.

Additional documentation the DOL requires the employee to provide to the employer, along with other information the employer may consider requesting from the employee based on the reason for paid sick leave, follows:

Reason No. 1: Government-issued quarantine or isolation order: 

  • Name of government entity that issued the order (required)
  • Copy of the order (optional)

Reason No. 2: Health care provider’s advice to self-quarantine: 

  • Name of health care provider who gave this advice (required)
  • A note from the health care provider containing this directive (optional)

Reason No. 3: Employee has symptoms of COVID-19 and is seeking a diagnosis:

  • Identification of COVID-19 symptoms the employee is experiencing (optional)
  • Whether the employee has had any recent travel and any known exposure to a person who tested positive (optional)
  • Medical diagnosis once obtained, supported by health care provider’s note (optional)
  • Note from the health care provider if employee is advised to self-quarantine (optional)

Reason No. 4: Employee is caring for an individual subject to a government-issued quarantine or isolation order or health care provider’s advice to self-quarantine: 

  • Name of governmental entity ordering quarantine or isolation order OR name of health care provider advising self-quarantine (required)
  • Name of the individual for whom the employee is providing care (required)
  • The relation of the individual to the employee (required)
  • Copy of governmental order OR copy of health care provider’s advice (optional) 

Reason No. 5: Employee is caring for his or her child whose school or place of care is closed or whose child care provider is unavailable:

  • Name and age of each child the employee is caring for (required)
  • Name of school or place of care that is closed OR name of child care provider who is unavailable (required)
  • Written communication from or notice of closure posted on the website by the school or place of care for reasons related to COVID-19 (optional)
  • Written communication from the child care provider regarding his/her unavailability to provide child care for reasons related to COVID-19 (optional)
  • Statement by the employee that no other suitable person will be caring for the child during the period of leave (required)
  • For a child age 14 or older, a statement that special circumstances exist that require the employee to care for the child during daylight hours (required) and a description of such special circumstances (optional)
  • For a child age 18 or older, a statement that the child (1) has a physical or mental disability and (2) is incapable of self-care because of this disability (required) and the certification of the disabled adult child’s health care provider (optional)

Expanded family and medical leave

The same documentation is required and suggested for expanded family and medical leave as for emergency paid sick leave. See above and No. 5.

Recordkeeping requirements

In addition to obtaining the necessary support for the employee’s request for paid sick leave or expanded family and medical leave, employers must keep the following records for four years in the event of an audit, employee complaint, or litigation:

  • Documentation provided by the employee requesting paid sick leave or expanded family and medical leave regardless if leave was granted or denied, including documentation of verbal statements from employees regarding leave;
  • Documentation from an authorized officer of the employer regarding the denial of any request for paid sick leave or expanded family and medical leave;
  • Documentation to support a claim for tax credits, including:
    • How the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees who are eligible for the credit, including records of work, telework and paid sick leave and expanded family medical leave;
    • How the employer determined the amount of qualified health plan expenses the employer allocated to wages;
    • Copies of any completed IRS Forms 7200 the employer submitted to the IRS;
    • Copies of the completed IRS Forms 941 the employer submitted to the IRS or records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
    • Any 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.

If you have questions about the information and documentation required by the DOL and IRS and other optional documentation when responding for employees’ requests for emergency paid sick leave and expanded family and medical leave, please contact one of the attorneys in our Employment & Labor practice group.

Link to COVID-19 Resources page

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