Documenting Families First Coronavirus Response Act Paid Leave

It is natural, in the limited time Employers have had to understand their obligations and their employees’ rights under the FFCRA to paid leave and paid extended family and medical leave, that they have not focused on how they will secure the tax relief that will pay for those benefits. Employers, however, will be required to document employee paid leave and the reason for the leave to be entitled to tax credits. The time to focus on that documentation is now. The IRS has issued regulations and guidance, which specifies what that documentation should look like.

The documentation must be on a written request form created by the Employer. The form should contain the employee’s name, the dates for which leave is being requested, and should identify the COVID-19 reason under the FFCRA for which leave is being requested. It should also provide written support for the reason. The form should contain a certification that the employee is unable to both work at the worksite and telework.  

Where leave is taken due to a quarantine Order, the form should identify that Order. If leave is due to being advised by a healthcare professional to self-quarantine, the form should identify that professional and the date such advice was received. If leave is to care for another, the form should identify the person and relationship to the employee. If leave is to care for a child, the name and age of the child should be stated. (This might be available to Employers through healthcare insurance forms, but great care should be exercised in who has access to medical information.) The name of the school closed or childcare person unavailable should be provided.  The form should state that there is no one other than the employee available to provide childcare. Where childcare is for a child older than 14 and during daylight hours, special circumstances must be stated. The lawyers at Reger Rizzo & Darnall can assist clients in preparing an appropriate form.

In addition to the form containing information related to the employees’ leave, Employers must document how they determine the amount of wages paid as leave under the FFCRA. Employers who will seek tax credits related to health plan expenses will need documentation substantiating that calculation.  

Finally, Employers should have copies of IRS form 7200, which is the form used to seek advance tax credits related to leave expenses where the Employer has insufficient funds to pay the required leave under the Act.  

The IRS regulations also prohibit requiring employees to provide documentation beyond what is identified above, but this does not preclude compliance with the Employer’s normal FMLA notice requirements.