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October 16, 2020
When and How Employers Can Require Notice of FFCRA Paid Leave During Pandemic

As COVID-19 continues to affect the workplace, the U.S. Department of Labor (DOL) is trying to provide guidance on how employers should implement the Families First Coronavirus Response Act (FFCRA). You may be wondering if, when, and how you can require employees to provide notice and documentation when they’re taking paid leave under the FFCRA. Thanks to a recent revision to the DOL’s “final rule” on paid leave under the Act, the answer has been clarified.

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Documentation vs. Notice

The DOL’s original final rule would have allowed employers to require their employees to provide documentation before taking either paid sick leave or expanded family and medical leave. After a New York federal district court struck down certain parts of that rule, the DOL updated it, and a new final rule went into effect on September 16, 2020.

Notably, you can no longer require employees to provide documentation of their leave before it happens. Now, you can require the documentation only “as soon as practicable,” which in most cases will be “when the employee provides notice” of the leave. But what kind of documentation can you require? And when is notice required?

How to Prove It

The documentation’s purpose is to prove the FFCRA actually covers the employee’s leave. The DOL says the required information can include the employee’s name, the dates for the leave, the qualifying reason, and either an oral or a written statement that the employee is unable to work.

As mentioned above, you can’t require employees to provide the information before taking sick leave, but only as soon as is practicable. So, what does that mean?

Notice and Differences in Leave

Under the FFCRA, employers can’t require notice in advance when their employees need to take paid sick leave. For paid sick leave, the notice can be required only after the first workday for which an employee takes the leave.

When it comes to expanded family and medical leave, however, the rules are different. For that leave, you can require advance notice from your employees, but only if the leave is foreseeable.

The DOL clarified the “foreseeability” of expanded family and medical leave with an example: Suppose an employee learns Monday morning that a child’s school will be closing on Tuesday because of COVID-19 issues. In such an instance, “the employee must notify his or her employer as soon as practicable (likely on Monday at work).” According to the agency, that situation is foreseeable leave.

If the employee learns about the closure on Tuesday after reporting for work, however, he can start the leave without notice but still must give notice as soon as is practicable. Of course, the leave would be considered unforeseeable.

Bottom Line

You can require documentation of an employee’s leave only as soon as it’s practicable, rather than before the leave. Notice, on the other hand, can be required in advance, but only for foreseeable expanded family and medical leave. If you are dealing with paid sick leave or unforeseeable family and medical leave, neither notice nor documentation can be required in advance.

Dylan T. Hughes is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia. You can reach him at 304-933-8128 or dylan.hughes@steptoe-johnson.com.

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