What notice may an employer require where the employee is unable to work (or telework) due to the employee is caring for his or her son or daughter whose school or place of care has been closed or child care is unavailable for reasons relating to COVID-19? May an employer require proof of school or daycare closure when an employee requests FMLA Child Care Leave?
The regulations state that, where an employee requests leave in order to care for a child due to school closure or the unavailability of child care, the employee must give notice as soon as practicable where the need for leave is foreseeable. While generally it will be reasonable for the employer to require the employee to comply with the employer’s usual and customary notice and procedural requirements, what is reasonable ultimately will depend on the facts and circumstances of each case, and employers cannot require the employee to provide more than the information noted below.
- 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.
- However, the employer may not require notice to include documentation beyond the following for child care leave under EPSLA and EFMLEA:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave;
- Oral (*–but see note below) or written statement that the employee is unable to work because of the qualified reason for the leave.
- The name of the son or daughter being cared for;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes Paid Sick Leave or Expanded Family and Medical Leave.
In addition, the IRS has provided guidance on the documentation it requires an employer to maintain to claim the tax credits related to the EPSLA and EFMLEA wages and health benefits and with respect to similar leaves provided on a voluntary basis after the mandate for such paid leaves expired. The reasons for the absence from work were expanded to include (1) time off when the employer requested the individual be tested or diagnosed, (2) the employee obtaining immunization for COVID-19, or the employee recovering from any injury, Illness disability or condition related to such immunization. Read more about the expansion and extension of the credits here.The records an employer must save for the requested leaves to justify the tax credit claimed are the following:
Employee Certification Requirements as Part of the Record Retention Requirements. An employer needs to retain the written request for the leave provided by the employee which includes: employee’s name, 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 the reason, and a statement that the employee is unable to work, including by means of telework, for such reason.
If the paid sick leave is based on a quarantine order or self-quarantined advice, the statement from the employee must include the name of the governmental entity ordering the quarantine or the name of the health care professional advising self-quarantine, and if the person subject to such quarantine is not the employee , the person subject to such advice and his or her relation to the employee.
If the paid sick leave is based on the closing of a school or child care provider being unavailable, then the employee’s statement must include the name and age of the child to be cared for, the name of the school that closed or the place of care that is not available and a representation that no other person will be providing care for the child during the period for which the employee is receiving the FMLA expansion leave.
If the FMLA expansion leave is requested for a child who is over 14 years during daylight hours because the employee is unable to work or telework, the statement must state that special circumstances exist requiring the employee to provide the care for the child over 14 years.
*–While the initial request may be oral, employers must insist that the documentation required by the IRS is provided by the employee in writing. The regulations specifically note that the employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been given.
Employers need to save the records for the credits it claims against payroll taxes for these leaves for five years after they file the payroll tax return or claim for refund o Form 7200 with the IRS. The claim for refund is only to be filed if the employer has exhausted its eligible payroll taxes that can be offset.
Last updated April 20
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