New guidance from the IRS, issued the evening of March 31, 2020, answers some of the questions left open by recent DOL publications on the issue of Emergency Paid Sick Leave (EPSL) and Expanded FMLA leave under the Families First Coronavirus Response Act (FFCRA).
Perhaps most importantly, the IRS guidance identifies specific information that employers can require from employees seeking paid leave under the new statute. Employers may require a written request for any leave sought under the FFCRA including, at a minimum:
- The employee’s name;
- The date or dates for which leave is requested;
- A statement identifying the COVID-19 related reason the employee is requesting leave and written support for such reason; and
- An affirmative statement from the employee that he or she is unable to work, including by means of telework, for such reason.
EPSL Leave for Active or Suspected COVID-19
In addition, for EPSL requests based on a “government quarantine order” or medical self-quarantine advice, the employee can be required to provide:
- The name of the governmental entity ordering quarantine, or the name of the health care professional advising self-quarantine; and
- If the employee is requesting leave to care for another person subject to quarantine or medically advised to self-quarantine, that person’s name and the relationship to the employee.
For school-related absences (which may qualify for protected, paid time off under both EPSL and Expanded FMLA), the new IRS guidance makes clear for the first time that employees must verify that “no other person will be providing care for the child during the period for which the employee is receiving family medical leave.” In other words, employees cannot stay home on paid leave if someone else (e.g., a spouse, significant other, or caretaker) is already available to care for their school-aged kids.
Another revelation in the IRS guidance: if the children subject to school closures are aged 15 to 17, the employee can also be required to explain what “special circumstances” justify the need for a parent to stay home with them. Presumably, this would be satisfied by a statement that the child has special needs or is otherwise unable to provide self-care.
Accordingly, for employees requesting school-closing leave, the employee can be required to provide:
- The name and age of the child to be cared for,
- The name of the school or daycare that has closed,
- An affirmative representation from the employee that no other person will be providing care for the child during the period for which the employee is taken leave, and
- A statement that “special circumstances” exist requiring the employee to provide care for a child older than 14.
Like the DOL before it, the IRS has not provided employers with any convenient sample forms for collecting the information to which employers are entitled under this new guidance. Coolidge Wall is drafting a template intended to help clients comply with the various federal guidances available.
The Labor and Employment lawyers at Coolidge Wall will post additional analysis about employer responsibilities under the Families First Coronavirus Response Act, as well as information updates on other federal and state developments related to the coronavirus outbreak. Should you have specific questions, please contact us.
Marc L. Fleischauer
David P. Pierce
Benjamin A. Mazer
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