Don’t Ask: New Department of Labor Guidance Restricts Employers from Requiring Documentation from Employees Seeking Paid Leave Under the FFCRA

Pullman & Comley - Labor, Employment and Employee Benefits Law

On May 7, 2020, the United States Department of Labor added questions 89-93 to its list of FAQs about the Families First Coronavirus Response Act (“FFCRA”) which provide guidance to employers and employees alike about the paid sick leave and expanded family medical leave provisions of the FFCRA.

Many of the new questions expand upon prior DOL guidance and describe how the FFCRA’s paid leave requirements apply to joint employers, temporary placement agencies, employers of domestic service workers, and organizations with employees performing remote/telework. But buried between two seemingly innocuous questions about when certain employees may take leave, the DOL hid a bombshell. 

Question 92 significantly reduces an employer’s ability to request documentation from employees seeking leave under the FFCRA.  Typically, it is critical for employers to obtain proper documentation from employees to ensure that the leave is FFCRA-related – both to justify the leave entitlement and to ensure that the business will be eligible to claim the premium tax credits to reimburse the cost of providing the FFCRA leave to employees.  Requesting documentation from employees could also provide valuable information to employers to help to determine if other employees were exposed to COVID-19 in the workplace, or when it may be safe for sick employees to return to work.

Under the new guidance, when an employee experiencing COVID-19 symptoms requests paid sick leave under the FFCRA to seek a medical diagnosis, an employer “may require the employee to identify his or her symptoms and a date for a test or doctor’s appointment… [H]owever, an employer may not require the employee to provide further documentation or similar certification that he or she sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms.

The DOL acknowledged that the COVID-19 medical documentation requirements were designed to be minimal in order to make it easier for employees experiencing symptoms of COVID-19 to take leave and reduce further transmission of the virus. The FAQs also clarify that this new restriction does not apply to employers requesting documentation from employees seeking other types of paid or unpaid leave (such as FMLA), and that the respective evidentiary requirements for those leaves still apply.   

This is a drastic departure from prior interpretations of the FFCRA which were generally understood to permit employers to make reasonable inquiries of, and request additional documentation from, employees seeking FFCRA leave. Employers should immediately review their policies, administrative procedures, and leave request forms to ensure that no prohibited inquiries or requests are being made of employees seeking leave. Updates should be made as necessary, and employees in human resources should be properly trained to ensure compliance with this new rule. 

Failing to comply with the FFCRA and the host of other complicated COVID-19 rules and regulations can result in significant liability for employers.  Implementing comprehensive policies to address these issues and effectively communicating with employees is crucial to ensure compliance. Pullman & Comley has policy templates and other useful resources available to aid employers in navigating the confusing web of laws, regulations, and guidance. If your organization is unsure about its obligations under the FFCRA or other COVID-19 guidance, please contact any of our Labor and Employment Law attorneys for assistance.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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