The Families First Cornavirus Relief Act took effect yesterday. However, not all employees will qualify because they have to be sick, subject to a specific isolation (to keep someone diagnosed with COVID from infecting others) or quarantine (if they have been exposed to COVID) order, or unable to telework. Our stay at home order might qualify employees for unemployment compensation, but it is in place to keep us from getting sick, not to isolate or quarantine us. In light of this, the IRS is requiring employers to create and maintain certain records in order to qualify for the tax credits, etc. under the FFCRA. The IRS guidance also discusses various other calculation, tax credit and documentation issues that you should discuss with your accountant or tax attorney.
The DOL has indicated in its FAQs that employees may be able to show that they cannot telework – even if the employer has requested that they do so – because of their childcare responsibilities. However, the DOL is skeptical of such claims if the employer has been flexible about the hours worked. The IRS is similarly skeptical and requires employees to document that no other adult is available to assist and what special circumstances exist preventing the employee from teleworking during daylight hours if the child is over the age of 14. As discussed by the IRS:
An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:
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.
In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
The DOL also indicates that employers may permit employees to use intermittent leave for the childcare issues (but not for the illness issues if the employee is required to report to the workplace).
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
