In its most recent guidance on the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) instructed employees to provide their employers with documentation in support of their leave “as specified in applicable IRS forms, instructions, and information.” Last night, the IRS released guidance on what information and documentation an employer may request from an employee to substantiate the employer’s eligibility for tax credits for qualified leave wages under the Emergency Family Medical Leave Expansion Act and Emergency Paid Sick Leave Act provisions of the FFCRA. The IRS Guidance is available here. The relevant provisions of the guidance are outlined below.
According to the IRS, an eligible employer (i.e, an employer with fewer than 500 employees), will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:
In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine. If the person subject to quarantine or advised to self-quarantine is not the employee, the statement should also include that person’s name and relation to the employee.
In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving leave. In addition, if the employee claims an inability to work or telework because of a need to provide care for a child older than 14 during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care.
In addition to documentation received from employees, the IRS further instructs that in order for an eligible employer to maintain eligibility, the employer must create and maintain records that include the following information:
An eligible employer should keep all records of employment taxes for at least four years after the date the tax becomes due or is paid, whichever comes later.
If you have questions about these documentation requirements or any other issues surrounding the FFCRA, please contact any member of Warner’s Labor and Employment Practice Group.