As employers have noodled on the new federal emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) law, you’ve done a double-and triple-take on the notice and documentation requirements under this new law. In short, they can be confusing. As a result, plenty of clients have asked me to break down this process just to confirm they are understanding these confusing rules.

To make this as clear as possible, I thought it best to break down the notice and documentation processes for an employee requesting leave.  Here we go:

What is the Time Frame for Requesting EPSL and FMLA+?

The timing of notice differs depending on the reason for leave.

For employees who need leave for school closures/childcare unavailability, and where this leave is foreseeable, employees must provide notice as soon as is practicable (consistent with “classic” FMLA standards). When an employee needs leave for any other reason under EPSL, the standards loosen, and employers can only require employee notice after the first workday that an employee takes EPSL.

Nothing in the new regulations prevents an employer from directing employees to then follow the organization’s usual and customary procedures from that point forward, and the Department of Labor indicates that such expectations will typically be reasonable.

Keep in mind: Employers must accept this notice from the employee’s spokesperson, such as a family member or other responsible party, if the employee is unable to provide such notice personally.

What Information is Required When an Employee Requests Leave?

The DOL regulations make clear that the employee must provide to the employer:

  1. the employee’s name
  2. the dates for which the employee requests leave
  3. the qualifying reason, and
  4. an oral or written statement that the employee is unable to work because of the qualifying reason.

Keep this last point in mind.  Oral notice of the initial need for leave under FFCRA is sufficient, as long as the employee provides enough information for the employer to determine it is an FFCRA-qualifying reason for leave.  However, as you may recall from my post last week, you should consider using an actual leave request form to maximize compliance.

Is that it? At that point, the employee can just take leave?

Nope, there’s more. Now, the employee must provide documentation to support the need for leave.

What Documentation Must the Employee Provide to Support the Need for EPSL and FMLA+?

It depends on the reason for leave:

If an employee has requested EPSL:

  • Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order
  • A health care provider advises an employee to self-quarantine due to concerns related to COVID-19: the name of the health care provider who advised the employee to self-quarantine.
  • Employee is caring for an individual who is subject to a quarantine or isolation order or an individual who has been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the individual being cared for to self-quarantine.

If an employee has requested EPSL or FMLA+ to care for a child whose school is closed or childcare is unavailable:

  • Employee must provide the name of the child, name of the school, place of care or child care provider (each defined in the regulations) that has closed or become unavailable, and a representation that “no other suitable person will be caring for the child during the period” the employee is taking EPSL or FMLA+ for this reason.

When Must this Documentation Be Provided?

That’s a good question. The DOL regulations are completely silent as to time period during which the employee must provide documentation or information supporting the need for EPSL or FMLA+.  Under classic FMLA, it’s 15 days, of course. But we have no stated rule here. Given that the classic FMLA gives an employee 15 calendar days to return certification, it seems perfectly reasonable to require the same time period here. Given that EPSL runs no more than two weeks, it also is defensible to provide a shorter period in this situation solely for EPSL (e.g., 7-10 days).

In considering how hard nosed an employer should be in this scenario, however, let me encourage you to closely consider the following  . . .

Patience is a Virtue

At all times, tread carefully. This is not necessarily the classic FMLA situation, where we can be a bit more no non-sense about the notification and documentation process. In its regulations for EPSL and FMLA+, however, the DOL reminds employers that if an employee fails in some regard with respect to providing notice or supporting information or documentation, the employer should give the employee notice of the failure and an opportunity to correct the deficiency prior to denying the leave.

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.

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