COVID-19: Notice and Documentation Requirements under the revised FFCRA

September 15, 2020

COVID-19: Notice and Documentation Requirements under the revised FFCRA

In response to the recent New York District Court ruling pertaining to the FFCRA’s provision that required employees to provide employers with certain notice and documentation before taking FFCRA leave, the Department of Labor has issued revisions and clarifications to the notice and documentation provisions of the Act, while leaving intact the requirement that notice and documentation be provided.

In its Decision, the NY court invalidated the notice and documentation requirement to the extent that it required the employee to provide notice and documentation to substantiate leave prior to taking FFCRA leave, as it rendered some other provisions unworkable. The Department of Labor has now amended the existing regulations to provide that any documentation required under Section 826.100 does not need to be provided before the leave begins. Instead the documentation must now be provided “as soon as practicable”, which in most cases will be when the employee provides notice of the need for FFCRA leave. In this scenario, advanced notice is still required if the need for leave is foreseeable.

Employers should be mindful of the DOL’s changes on the timing of notice of the need for FFCRA leave and the timing of the documentation requirements. The FFCRA revisions, which take effect on September 16, 2020, change only the timing of the notice and documentation requirements, but does not negate the requirement that notice and documentation to substantiate leave be provided by the employee. With respect to notice, the Act provides that the employer may require an employee to provide as soon as practicable:

The employee’s name;
The dates of leave;
The qualifying reason for leave;
An oral or written statement that the employee is unable to work

The information to be provided by the employee must be sufficient to allow the employer to determine whether the requested leave is covered under FFCRA. An employer may also request that an employee provide additional information required to support a request for tax credits.

If you have questions or are in need of assistance in determining whether proper notice and/or documentation was timely provided by an employee to substantiate leave under the FFCRA, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638.