By Rick Reyes
It is no easy task for employers to navigate and comply with the new federal requirements set forth in the Families First Coronavirus Response Act (FFCRA). Specifically, employers now must provide greater rights for leaves of absence under the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Expansion”) and the Emergency Paid Sick Leave Act (“EPSLA”). In attempting to quickly address the potent impact that Coronavirus (“COVID-19”) has had on the country’s economy, Congress rapidly enacted the FFCRA. The problem? The FFCRA leaves many unanswered questions, and leaves employers guessing as to exactly how to comply and what the employers can and cannot do. One major source of confusion is exactly what documents, if any, can an employer request prior to granting an employee with a leave of absence. This article attempts to provide more guidance to employers on this issue.
When May An Employee Take a Leave of Absence Under the Emergency FMLA Expansion?
In short, an employee may take leave of absence when the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a “public health emergency.” The term “public health emergency” means an emergency with respect to COVID-19 declared by a federal, state or local authority.
The employee may take up to 12 weeks of paid leave.
When May An Employee Take a Leave of Absence Under the EPSLA?
The EPLSA provides for six (6) covered reasons under which an employee may take a leave of absence. These include:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- The employee is caring for an individual who is subject to an order as described in No. 1 or has been advised as described in No. 2, above;
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, “due to COVID-19 precautions;”
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Full time employees may take up to 80 hours of paid leave under the EPSLA. The amount of leave for part-time employees is the average number of hours worked over a two-week period, unless the employee works a variable schedule, which requires a different calculation.
For a more detailed analysis of the requirements and entitlements under the Emergency FMLA Expansion and the EPSLA, see our previous blog post here.
What Documents Can Employers Require Prior To Authorizing Leave Under EPSLA?
Prior to today, March 27, 2020, the answer to this question was unclear. However, earlier this morning, the Department of Labor (“DOL”) has issued further guidance for employers on this specific issue.
The DOL states that if an employee is unable to work or telework due to a qualifying reason related to COVID-19, the employee must provide documentation in support of the reasons for the paid sick leave. Such documents may include: a copy of the federal, state or local quarantine or isolation order related to COVID-19, or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.
What Documents Can Employers Require Prior To Authorizing Leave Under the Emergency FMLA Expansion?
As briefly mentioned above, an employee may only take leave of absence under the Emergency FMLA Expansion to care for the employee’s son or daughter because of a school closure due to a public health emergency.
Thus, the DOL explains that an employee must provide documentation supporting the need for leave under the Emergency FMLA Expansion. To meet this requirement, employees may provide their employers with a notice of closure or unavailability from the child’s school, place of care, or child care provider. This “notice” can include a notice that may have been posted on a government, school or day care website, published in a newspaper, or emailed from either the employee him/herself or an official of the school, place of care, or child care provider.
Another question up in the air was whether the existing certification requirements under the FMLA would continue to stay in place. The DOL’s guidance confirms that the employee must continue to satisfy the certification requirements under the FMLA if the employee is taking leave for one of the existing qualifying reasons under the FMLA. Employees must continue to provide medical certifications for the qualifying reasons under the FMLA, if required by the employer.
Recommendations for Employers
While the DOL’s guidelines clarify that an employer can request documentation from an employee prior to taking leave of absence under both the Emergency FMLA Expansion and the EPSLA, there are some issues employer must be mindful of.
First, employers must remember that under EPSLA, there are multiple covered reasons under which an employee may take leave of absence. Under some of those covered reasons, the required documentation will be easily provided. For example, when the employee is taking leave to take care of his or her child. In that scenario, the employee would only need to provide a notice that the school is closed, as discussed above. However, if the employee requests leave of absence because the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (No. 2, discussed above), the documentation may not be as easily obtainable. Given the current circumstances and access limitations, not all employees may be able to get the medical assistance required (such as testing). Under those circumstances, employers may want to take a more flexible approach and err on the side of providing the leave of absence. We advise employers to approach these issues cautiously and always consult with legal counsel prior to making a determination.
Second, employers should unambiguously advise their employees that, even if the employer is not requesting documentation at the time of granting the leave or the employee does not possess such documentation at that time, the employer reserves the right to request those documents at a later date or when the employee has access to them. This can potentially deter employees from taking advantage and abusing leaves of absence under the law. Employers should further advise their employees that a failure to provide the required documentation, either at the time of request or a later date, may result in disciplinary action, up to and including termination.
Lastly, when an employee requesting a leave of absence to take care of his or her, this may give rise to some problematic issues. It could be possible that employees who may not even have children may want to take advantage of their legal rights to take a leave of absence. What type of documentation, if any, can be requested from the employee to verify this type of leave is uncertain. At the minimum, employers should clearly document with the employee the reason the employee is requesting for the leave and have this confirmed in writing by the employee. This way, at least the reasons are clearly documented, and if it the employer later learns that the reason was not a legitimate reason under the law for paid leave, the employer could then consider disciplinary action at that time. However, it is recommendation is to err on the side of caution and grant the leave of absence and to consult with counsel on these issues.
As the DOL provides further guidance, we will keep employers up to date. The full text of the DOL’s guidance can be found here.