Employee Notice of Need for Leave Under Families First Coronavirus Response Act (FFCRA)

 

An employer may require employees to follow reasonable notice procedures as soon as practicable after the first workday or portion of a workday for which an employee received paid sick leave in order to continue to receive such leave. Reasonable notice requires an employee to provide oral or written notice and sufficient information for an employer to determine whether the requested leave is covered by the FFCRA. An employer may not require the notice to include any documentation beyond what is allowed by the FFCRA. The FFCRA provides that it is reasonable for an employer to require an employee to comply with the employer’s usual notice procedures and requirements, absent unusual circumstances. If an employee fails to give proper notice, the employer should give the employee notice of the employee’s failure and an opportunity to provide the required documentation prior to denying the request for leave.

 

Documentation of Need for Leave Under FFCRA

 

An employee is required to provide an employer with documentation in support of a need for leave. Section 826.100 of the FFCRA provides that such documentation must include a signed statement containing the following information:

 

  1. The employee’s name;
  2. The date(s) for which leave is requested;
  3. The Covid-19 qualifying reason for leave; and
  4. A statement representing that the employee is unable to work or telework because of the Covid-19 qualifying reason.

 

Depending on the Covid-19 qualifying reason for leave, an employee may be required to provide additional documentation establishing reason for leave.

 

  1. If an employee is unable to work, including being unable to telework, because the employee is subject to a Federal, State or local quarantine, the employee’s signed statement to an employer must include the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
  2. If an employee is unable to work, including being unable to telework, because the employee has been advised by a health care provider to self-quarantine in relation to Covid-19, the employee’s signed statement to an employer must include the name of the health care provider who advised the individual to self-quarantine.
  3. If an employee is unable to work, including being unable to telework, because the employee is caring for his or her child whose school or place of care is closed or child care provider is unavailable due to Covid-19 related reasons, the employee’s signed statement to an employer must include the name of the child being cared for; the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons and a statement representing that no other suitable person is available to care for the child during the period of requested leave.

 

An employer may also request an employee to provide such additional material as may be needed for the employer to support a request for tax credits pursuant to the FFCRA.

 

Documentation Required Under Family Medical Leave Act

 

An employee entitled to leave under FFCRA may also be entitled to additional leave under FMLA. If an employee requests additional leave under FMLA, the employer may require the employee to submit a certification from a health care provider to support the employee’s need for FMLA leave for the employee’s own serious health condition or for a covered family member with a serious health condition. With respect to the Covid-19 pandemic, U.S. Department of Labor publications indicate that employers should consider that during a pandemic, healthcare resources may be overwhelmed, and it may be difficult for employees to get appointments with health care providers.

 

Recordkeeping

 

FFCRA provides than an employer is required to retain all documentation provided by an employee for 4 years regardless of whether leave was granted or denied. If an employee provides oral statements in support of a request for leave, the employer is required to document and retain such information for 4 years. Retention of proper documentation is required in connection with the employer’s right to claim tax credits under FFCRA.

 

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