Yesterday, the Families First Coronavirus Response Act (FFCRA) became effective, granting eligible employees emergency paid sick leave and emergency paid family leave in response to COVID-19.  On the same day, after weeks of employers (and their attorneys) attempting to decipher the nuances of the leave requirements, the Department of Labor (DOL) issued temporary regulations, shedding light on many of the darkest and unknown corners of the law.

For example, we now know that the emergency paid sick leave (80 hours) runs simultaneously with the first ten days of emergency family leave.  We also know that the emergency paid family leave is not in addition to the twelve weeks of traditional FMLA – employees have 12 weeks total to use for traditional and/or COVID-19 qualifications, not 24.  Yet, employers are more focused on the immediate issue of determining what procedures and documentation they can require to avoid abuse and ensure that they have sufficient information to receive the tax credit.

The temporary regulations give us some answers.  First, the employer can require reasonable notice procedures and generally can require the employee to comply with its usual and customary notice and procedural requirements for requesting leave.  However, there are limitations.  Employers cannot require notice to be given in advance of the leave, it can only be required after the first workday (or part of workday) for which the employee takes the paid leave.  Thereafter, employers can require notice as soon as practicable.  An employer can require the content of the notice, which can be oral, to contain sufficient information determine that the leave is qualifying for paid sick or paid family leave.

An employer can also require supporting documentation.  Regardless of whether the employee is taking paid sick leave or paid family leave, the employee is required to provide documentation containing following: (1) his/her name; (2) dates for which leave is requested; (3) qualifying reason for leave; and (4) a statement that the employee is unable to work because of a qualified reason.  The documentation requirements do not end there.  Additional documentation is required depending upon the basis for the leave.  With respect to paid sick leave, if the employee is taking paid sick leave based on a quarantine or isolation directive (either from the government or a health care provider), he/she must provide the name of the governmental entity or the health care provider that issued the directive.  If the employee simply takes leave under traditional FMLA for their own serious health condition (or to care for the employee’s spouse, child, or parent with a serious health condition) related to COVID-19, the normal FMLA certification requirements apply.

Given that most (if not all) schools and childcare facilities are closed, the most prevalent need for paid sick and family leave will likely be related to childcare.  If the basis for paid sick and paid family leave is childcare, the employee must provide: (1) the name of the son or daughter; (2) the name of the school or place of care that has closed; (3) and a representation that no other suitable person will be caring for the son or daughter during the period of leave.  This last requirement will help avoid the situation where both parents are utilizing paid sick and paid family leave, while only one is needed to care for their children.  Finally, the regulations allow employers to request additional documentation that will be needed to support a request for tax credits for providing the leave.

Enter the IRS.  The IRS issued its own guidance related to seeking the tax credits, and if you thought that the IRS was not going to put limits on the eligibility for tax credits, you were wrong.  While the documentation requirements for the tax credit largely mirror the DOL temporary regulations, there is one large difference when it comes to paid leave for childcare purposes.  IRS requires that the documentation include the age of the child – and if the need for leave is to care for child under older than 14 during daylight hours, the documentation must include a statement that special circumstances exist requiring the employee to provide care.

So, while an employee may be eligible for leave for any child under 18, the employer will only be eligible for a tax credit if the leave is for children 14 and under (absent some exceptional circumstance).   This makes clear that employers need to be careful to gather needed documentation to capture as much tax credit as possible. Given the implications, employers should include these documentation requirements in their policies to ensure both compliance with DOL regulations and also eligibility for tax credits.  If the employee fails to provide them, after giving them notice and an opportunity to correct the failure, employers should deny the leave.