Employer's Recordkeeping Requirements For Leave Requests Under the FFCRA

On April 6, 2020, the United States Department of Labor ("DOL") issued its Temporary Rule promulgating regulations to implement the leave entitlements authorized by the Families First Coronavirus Response Act ("FFCRA").

The relevant DOL regulations provide that an employee is required to provide to his or her employer certain documentation pursuant to a request for leave under the Emergency Sick Leave Act ("EPSLA") or Emergency Family and Medical Leave Expansion Act ("EFMLEA"), both of which we have previously covered here.  Employers, in turn, are required to maintain this documentation for four years, regardless of whether the request for leave is granted or denied.  Moreover, if an employee provides oral statements to support a request for leave under the EPSLA or EFMLEA, the employer is required to document and maintain such information in its records for four years. Finally, a small employer (<50 employees) claiming an exemption from providing leave under the relevant provision of the EPSLA or the EFMLEA, must document the determination by its authorized officer that is eligible to make such a determination and retain that documentation for four (4) years.

Recordkeeping EPSLA and EFMLEA

An employee requesting leave under the EPSLA or EFMLEA is required to provide the following information at minimum, which the employer should maintain for four (4) years following the request for leave:

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.

Additionally, an employee requesting leave under the EPSLA for a qualifying COVID-19 related reason because the employee is under a federal, state, or local quarantine or isolation order must also provide the employer with the name of the government entity that issued the quarantine or isolation order.  An employee seeking leave for a qualifying COVID-19 related reason because the employee has been advised to self-quarantine by a healthcare provider 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.

An employee requesting leave to look after someone for a qualifying COVID-19 related reason who is subject to a federal, state, or local quarantine or isolation order or who has been advised to self-quarantine by a healthcare provider must also 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 self-quarantine due to concerns related to COVID-19.

For an employee requesting leave under the EPSLA to look after a son or daughter whose school or place of care has been closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable, for reasons related to COVID-19 or requesting leave under the EFMLEA must also 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 leave under the EPSLA or EFMLEA.

Finally, an employer may also request that an employee 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 by the employee.

Tax Credits

If an employer intends to claim a tax credit for payments made under the EPSLA or EFMLEA, the employer should maintain the following records for four years:

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 benefits paid under the EPSLA or EFMLEA;
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 this IRS guidance.

More guidance may be forthcoming once a final rule is issued.

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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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