Recent EEOC guidance from April 17, 2020 provided additional information about providing reasonable accommodations for disabilities, addressing harassment, and returning employees to wor k in the era of COVID-9. This EEOC guidance provides critical insights for employers to be sure they are complying with anti-discrimination laws enforced by the EEOC, including for example the Americans with Disabilities Act and Title VII.
But, as noted in multiple earlier VAC Legal Line Blog Posts, employers must keep in mind that the issues created by the pandemic may implicate other workplace laws, as well, including OSHA, the WARN Act, and the new the Families First Coronavirus Response Act too. All of these laws have distinct but overlapping rules for employers forced to deal with the impact of coronavirus on their employees and businesses.
As just one example, the new EEOC guidance provides that employers should be flexible during the pandemic about requiring a doctor’s note to support a stay at home or telework request. This is one agency’s positions on the issue of documentation in the context of a reasonable accommodation. under the ADA. But, that may not be the only consideration.
In a COVID-19 situation, the employee may also have a right to leave under the FFCRA. This law has its own set of rules regarding documentation, which are enforced by the DOL. The DOL has taken the position that employers cannot require employees to provide a doctor’s note to support a request for paid sick leave under the FFCRA. During educational webinars, the DOL has said that employers are limited to requiring employees to provide only the documentation specifically set forth in the FFCRA to support a request for leave.
According to DOL FAQ 16, employees requesting paid sick or expanded family medical leave under the FFCRA need to give employers, either orally or in writing, only the following information:
- The date(s) for which leave is requested;
- The reason for leave;
- A statement that you are unable to work because of the above reason; AND
- The name (not the order itself) of the government entity that issued the order, if requesting leave because of a quarantine or isolation order;
- The name (not a doctor’s note) of the health care provider who advised of the need for self-quarantine if requesting leave to self-quarantine or to care for someone else who is; or
- If the leave request is to care for a child whose school or place of care is closed or child care provider is unavailable:
- The name of your child;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A statement that no other suitable person is available to care for your child.
The DOL has also said that employees must also provide written documentation in support of paid sick leave as specified in applicable IRS forms, instructions, and information to ensure the tax credit. According to IRS guidance, eligible employers report their total qualified leave wages and the related credits for each quarter on their federal employment tax returns, usually Form 941. If the permitted reduction in deposits is greater than the qualified leave wages (and allocable qualified health plan expenses and the Eligible Employer’s share of Medicare tax on the qualified leave wages), the Eligible Employer can file a Form 7200, Advanced Payment of Employer Credicts Due to COVID-19, to claim an advance credit for the remaining qualified leave wages (and any allocable qualified health plan expenses and the Eligible Employer’s share of Medicare tax on the qualified leave wages) it has paid for the quarter for which it did not have sufficient federal employment tax deposits.
The larger point here is that making decisions about employees in the age of COVID-19 is complicated. Because there are likely multiple laws with distinct requirements, employers must be careful not to rely on any one particular law or agency guidance when making decisions about time off, job duties or other benefits. Employers must be sure to assess and understand all obligations before deciding how to address employment matters during this pandemic, with assistance of legal counsel, tax preparers, accountants or other experts as necessary.