Confirm that Your FFCRA Leave Request Forms Align with DOL Regulations AND the IRS Guidance on Claiming Tax Credits for Leave

Since the passage of the Families First Coronavirus Response Act (“FFCRA”), there has been confusion regarding what “documentation” that employers can and should request from employees who qualify for FFCRA leave. Some of the confusion was addressed in the DOL’s regulations clarifying the documentation requirements. Under the regulations, for both emergency paid sick leave and expanded family and medical leave, the employee is required to provide the following “documentation”:

1) Employee’s name
2) Date(s) for which leave is requested
3) Qualifying reason for the leave
4) “Oral or written” statement that the employee is unable to work because of the qualified reason

See 29 C.F.R. § 826.100(a)(4).

The DOL regulations impose additional “documentation” requirements depending on the qualifying reason:

• If the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19, the employee must provide the name of the governmental entity that issued the order
• If a health care provider has advised an employee to self-quarantine due to concerns related to COVID-19, the employee must provide the name of the health care provider
• If the employee is caring for an individual who is subject to a quarantine or isolation order or an individual who has been advised by a health care provider to self-quarantine, the employee must provide either the name of the governmental entity that issued the order or, as applicable, the name of the health care provider who advised the individual being cared for to self-quarantine
• If the employee is caring for a child whose school is closed or childcare is unavailable, the employee must provide the name of the child, name of the school, place of care or child care provider that has closed or become unavailable, and a representation that “no other suitable person will be caring for the child during the period” the employee is taking leave for this reason.

Notably, the regulations also state that the employer may request “additional material” that is needed for the employer to claim tax credits, and that an employee’s failure to provide these materials means that the employer may deny leave. 29 C.F.R. § 826.100(f).

So what is required to claim tax credits for the leave? Here is where things get murky. The IRS FAQ, originally published on March 31, 2020, contain several variations from the DOL regulations in terms of what supporting documentation must be provided.  In FAQ 44, these variations include:

1) Written or oral request? The IRS guidance appears to require a written request, including a written statement that the employee is unable to work because of the qualifying reason for leave. See FAQ 44. This contrasts with the DOL regs’ requirement that an employee may communicate the inability to work “orally.” This variation suggests that even though the employer is obligated to grant leave, at least initially, based solely on an employee’s oral statement of inability to work, the employer should later obtain the employee’s statement in writing for purposes of claiming the tax credit.

2) Name and relation of the “individual” subject to a quarantine order or advice to self-quarantine for whom the employee is caring. The IRS guidance says that employee’s statement should include the “name and relation to the employee” of an individual subject to a quarantine order. The DOL regulations, by contrast, do not contain either requirement.

3) Age(s) of child(ren) being cared for. The IRS guidance requires the “age” of the child; the DOL regulations do not.

4) Special statement for children older than 14. If an employee is caring for a child older than 14 during “daylight hours,” the IRS guidance requires a specific statement that “special circumstances exist requiring the employee to provide care.” The DOL regulations, while requiring a representation that no “suitable person” will be caring for the child, do not contain this additional “special circumstances” requirement.

The Bottom Line for Employers

Because the IRS’ FFCRA guidance imposes documentation requirements that differ in certain respects from the DOL regulations, employers should take care to incorporate these additional requirements into the documentation they obtain from employees. Employers should also stay apprised of any updates or additional guidance from either agency that may clarify employers’ documentation responsibilities.