The IRS published these criteria to establish the necessary documentation to substantiate eligibility for the tax credits. But the Department of Labor has deferred to the IRS on this topic, instructing employers: “You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.” As a result, the documentation listed below may be requested from employees, and at this point, are sufficient to authenticate an employee’s request for leave.
According to IRS FAQs 44-46, the basic certification requirement for EFMLA and all types of EPSL is a signed statement by the employee containing:
- The employee’s name;
- The date or dates for which leave is requested;
- A statement of the COVID-19-related reason the employee is requesting leave and written support for such reason; and
- A statement that the employee is unable to work, including by means of telework, for such reason.
Self-Care: For EPSL requested to comply with a federal, state, or local quarantine or isolation order related to COVID-19, the statement from the employee should include the name of the governmental entity ordering quarantine or isolation.
For EPSL requested in response to advice from the employee’s health care provider to self-quarantine, the statement from the employee should include the name of the health care professional advising self-quarantine.
Care for Others: For EPSL requested to care for an individual who is subject to a federal, state, or local quarantine or isolation order, or who is following advice from the individual’s health care provider to self-quarantine, the statement from the employee must include:
- Either the name of the governmental entity ordering quarantine or isolation, or the name of the health care provider who is advising self-quarantine; and
- The name and relation to the employee of the individual who is subject to the quarantine order or has been advised to self-quarantine.
In addition, if the employee’s inability to work or telework is because of a need to provide care during daylight hours for their child that is older than 14, the IRS requires the employee provide a statement that special circumstances require the employee to provide care. “Special circumstances” may include care for a son or daughter who is over 14 and incapable of self-care because of a mental or physical disability. The DOL regulations released today clarify that caring for an adult son or daughter (18 years or older) with a disability is a qualifying EPSL and EFMLA absence.
If the leave taken is not EFMLA or EPSL, but standard FMLA (for example, for the employee’s serious health condition related to COVID-19), revert to your usual practices for obtaining certification from the health care provider.
The IRS is requiring employees to maintain records substantiating eligibility for EPSL and EFMLA leave for at least four years after the later of the date that the tax becomes due or is paid (whichever is later). We never know whether there might be future requests or audits, and whether employers may need to retrieve individual or collective data. Plan now for what you think will be most efficient in the future.
With employees now required to fill out and sign written statements verifying qualifying absences, employers are encouraged to reach out to their favorite BL attorney to customize a written form and ensure they can get refunded for the qualifying leave they provide.
For questions regarding FFCRA eligibility or documentation, contact Charlotte Hodde at 503-228-0500 or firstname.lastname@example.org.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2022 por Barran Liebman LLP.