Introduction
On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020, and will remain in effect through December 31, 2020. Among other things, the FFCRA seeks to assist both employees and employers affected by COVID-19. The FFCRA includes, among other provisions, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Each leave type sets forth specific documentation requirements that employees must satisfy to receive leave.
Documentation for the Emergency Paid Sick Leave Act
The EPSLA sets forth six (6) reasons for which an eligible employee make take leave: (i) the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (ii) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (iii) the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (iv) the employee is caring for an individual who is subject to an order in (i) or has been advised as in (ii); (v) the employee is caring for his/her child if the child’s school or place of care has been closed, or a childcare provider is unavailable, due to COVID-19 precautions; and (vi) 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 Secretary of Labor.
To take leave under the EPSLA, an eligible employee must provide his/her employer with documentation to support taking such leave. Generally, an employee must provide a signed statement that contains the following information: (i) the employee’s name; (ii) the date(s) for which leave is requested; (iii) the COVID-19 qualifying reason for leave; and (iv) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
However, there are additional items an employee must provide, which vary depending on the reason for the employee’s leave request. If an employee is requesting leave pursuant to reason (i), then he/she must provide the name of the government entity that issued the order. If an employee is requesting leave pursuant to reason (ii), he/she must provide the name of the health care provider who advised the self-quarantine due to COVID-19 reasons. If an employee is requesting leave pursuant to reason (iv), he/she must provide either (a) the government entity that issued the quarantine or isolation order, or (b) the name of the health care provider who advised the employee to self-quarantine. Whether (a) or (b) is necessary depends upon the precise reason for the leave request. Finally, if an employee requests leave pursuant to reason (v), he/she must provide (a) the name of the child being cared for; (b) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (c) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
In addition to the foregoing, an employer may request that an employee provide additional material that is necessary for the employer to support a request for tax credits under the FFCRA. If an employee does not provide sufficient documentation, the employer is not required to provide leave.
Documentation for the Emergency Family and Medical Leave Expansion Act
Under the EFMLEA, an eligible employee may take leave if his/her child’s school or place of care is closed for reasons related to COVID-19. Generally, an employee requesting leave must provide a signed statement that contains the following information: (i) the employee’s name; (ii) the date(s) for which leave is requested; (iii) the COVID-19 qualifying reason for leave; and (iv) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. However, when requesting leave for this specific reason, an employee must also provide (i) the name of the child being cared for; (ii) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (iii) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
The normal FMLA certification requirements do not apply to the newly articulated EFMLEA leave provision. However, if an employee is requesting leave under the FMLA due to (i) the employee’s own serious health condition related to COVID-19, or (ii) to care for the employee’s spouse, child, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements do apply.
If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us online or by calling us at (205) 319-9724.