When and how employers can require notice of FFCRA paid leave during pandemic

As COVID-19 continues to affect the workplace, the U.S. Department of Labor (DOL) is trying to provide guidance on how employers should implement the Families First Coronavirus Response Act (FFCRA). You may be wondering if, when, and how you can require employees to provide notice and documentation when they’re taking paid leave under the FFCRA. Thanks to a recent revision to the DOL’s “final rule” on paid leave under the Act, the answer has been clarified.

Documentation vs. notice

The DOL’s original final rule would have allowed employers to require their employees to provide documentation before taking either paid sick leave or expanded family and medical leave. After a New York federal district court struck down certain parts of that rule, the DOL updated it, and a new final rule went into effect on September 16, 2020.

Notably, you can no longer require employees to provide documentation of their leave before it happens. Now, you can require the documentation only “as soon as practicable,” which in most cases will be “when the employee provides notice” of the leave. But what kind of documentation can you require? And when is notice required?

How to prove it

The documentation’s purpose is to prove the FFCRA actually covers the employee’s leave. The DOL says the required information can include the employee’s name, the dates for the leave, the qualifying reason, and either an oral or a written statement that the employee is unable to work.