Alert: DOL Temporary Rule Regulating the Families First Coronavirus Response Act

Alert: DOL Temporary Rule Regulating the Families First Coronavirus Response Act

by Onyinyechi Muilenburg

On April 1, 2020, the DOL issued a temporary rule issuing regulations on the Families First Coronavirus Response Act (FFCRA). The rules largely follow the previously published FAQ by the DOL, but the rules did set forth some additional clarifications on the documents required by employees asking for leave and the documentation that employers need to maintain under the FFCRA. Below is a summary of the documentation requirements.

In section 826.100 of the rules, the DOL explained that an employee is required to provide the employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or Expanded Family and Medical Leave under the EFMLEA:

1. Employee’s name;

2. Date(s) for which leave is requested;

3. Qualifying reason for the leave; and

4. Oral or written statement that the Employee is unable to work because of the qualified reason for leave.

In order to take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(i), an employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order. This is the first qualifying reason for emergency Paid Sick Leave, which is if the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

To take Paid Sick Leave for a qualifying COVID-19 related reason under §826.20(a)(1)(ii) an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19. This reason is the second qualifying reason for emergency Paid Sick Leave, which is if the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

To take Paid Sick Leave for a qualifying COVID-19 related reason under §826.20(a)(1)(iii) an Employee must additionally provide the Employer with either:

1. the name of the government entity that issued the Quarantine or Isolation Order to which the individual being cared for is subject; or

2. The name of the health care provider who advised the individual being cared for to self- quarantine due to concerns related to COVID-19.

This is the third qualifying reason for emergency Paid Sick Leave, which is if the employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

To take Paid Sick Leave for a qualifying COVID-19 related reason under §826.20(a)(iv) or Expanded Family and Medical Leave, an Employee must additionally provide:

1. the name of the Son or Daughter being cared for;

2. the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and

3. a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.

This is the fourth qualifying reason for emergency Paid Sick Leave, which is the employee is caring for an individual who is subject to an order as described in reason 1 above or has been advised as described in reason 2 above.

The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

Record Keeping

The DOL also explained that an employer is required to retain all documentation provided pursuant to §826.100 for four years, regardless whether leave was granted or denied. In addition, if an employee provides oral statements to support their time off under the Paid Sick Leave or Expanded Family and Medical Leave, the employer is required to document and maintain this information in its records for four years.

Denial of Request for Paid Sick Leave or Expanded Family and Medical Leave

If an employer believes it qualifies for the small business exception under the law and denies an employee’s request for Paid Sick Leave or Expanded Family and Medical Leave pursuant to §826.40(b) the employer shall document the determination by its authorized officer that it is eligible for such exemption and retain such documentation for four years.

Documents Recommended to Claim Tax Credits

In order to claim tax credits from the Internal Revenue Service (IRS), the DOL set forth that employers are advised to maintain the following records for four years:

1. Documentation to show how the Employer determined the amount of paid sick leave and expanded family and medical leave paid to Employees that are eligible for the credit, including records of work, Telework and Paid Sick Leave and Expanded Family and Medical Leave;

2. Documentation to show how the Employer determined the amount of qualified health plan expenses that the Employer allocated to wages;

3. Copies of any completed IRS Forms 7200 that the Employer submitted to the IRS;

4. Copies of the completed IRS Forms 941 that the Employer submitted to the IRS or, for Employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the Employer’s entitlement to the credit claimed on IRS Form 941.


No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.

If you have any questions or would like more information about labor & employment, please contact Derek Flynn at 713.220.9197 or dflynn@hirschwest.com.