COVID-19 & Your Business: Frequent Questions

What notice must an employee give to the employer for Paid Sick Leave (other than for child care leave)? (29 CFR 826.80, 826.90, 826.100)

The regulations state that, after the first workday (or portion thereof) for which an employee takes paid sick leave under the Emergency Paid Sick Leave Act (EPSLA), other than for child care, an employer may require an employee to follow reasonable notice procedures. What is reasonable will depend on the facts and circumstances of each case, but employers should note the following:

 

  • Notice may not be required in advance.
  • It may be reasonable for the notice to be given by a spokesperson for the employee (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally.
  • Notice may be oral and must provide sufficient information for an employer to determine whether the requested leave is covered, but the employer may not require notice to include documentation beyond the following:
    • For all types of EPSLA paid sick leave, the notice must include
      • Employee’s name;
      • Date(s) for which leave is requested;
      • Qualifying reason for the leave;
      • Oral or written statement that the employee is unable to work because of the qualified reason for the leave.
    • Depending on the type of leave, the employee must also provide the following:
      • For EPSLA paid sick leave due to a quarantine or isolation order, the name of the government entity that issued the order;
      • For EPSLA paid sick leave due to an employee being advised to self-quarantine, the name of the health care provider;
      • For EPSLA paid sick leave due to caring for an individual, then the name of the governmental organization or health care provider providing the basis for the quarantine or isolation order.

The regulations do not provide specifically what notice or information must be given by an employee who has COVID-19 symptoms and seeks leave. Presumably, if the employer has good faith doubt about the need for leave, the employer may inquire of the health care provider with authorization from the employee, but should do so only after further clarification of the regulations and consulting with counsel. If an employee actually suffering from COVID-19 requires leave after the expiration of the 80 hours of EPSLA paid sick leave, then an employer may treat it as any other request for FMLA leave with the usual notice and certification requirements, but taking into account the unusual circumstances of the present situation where certifications by health care providers may be more difficult to obtain.

In addition for the IRS requirements on the employee certification, see the answer to Question 43 above for more details.

On August 3, 2020, the United States District Court for the Southern District of New York held that the notice requirement, to the extent that it required the employee to provide information before taking leave, was invalid. Read more about the decision.

Therefore, employers should be wary before denying leave because an employee fails to give information before the leave commences.

Last updated August 4

These materials are made available by Jackson Walker for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.