As you probably already know by now, the Families First Coronavirus Response Act (FFCRA) has put a lot of new obligations on employers regarding emergency paid sick leave (EPSL) and expanded Family and Medical Leave Act (FMLA) benefits. While the FFCRA does mandate that employers put up a poster to put employees on notice of the new sick leave laws, that isn’t the only document you need to worry about. In fact, there are quite a few other documents employers need to have in their possession to comply with the FFCRA.
Why Isn’t the Poster Enough?
The name of the game here during this age of coronavirus is document, document, document! Under normal circumstances, it is imperative for employers to keep accurate records of when employees request sick leave or accommodations, provide doctors’ notes, use PTO, etc. But now, more so than ever, it is extremely important for you to document not only your employees’ requests and the like, but your responses to them, as well. Not only for purposes of having a paper trail, but the also because the new laws require that you have certain things in writing.
For example, imagine you have an employee who calls off sick and requests EPSL, and your HR department allows for the paid leave. Then you find out later down the road that she merely had a head cold rather than any coronavirus symptoms. You just gave EPSL to an employee who was not entitled to it because no one asked her to describe her symptoms and the call was not documented.
Documentation is important not only as a best practice, but as requirement under the law. Verbal calls from employees who are requesting leave need to be put in writing, and employers need to collect specific information from employees when they are asking for time off. The information you are required to collect differs depending on what type of leave they are requesting. And all of these records related to coronavirus leave must be maintained for 4 years.
Putting up the notice poster only insulates you from one thing – getting in trouble for breaching the notice requirement under the FFCRA. But there are a lot of other requirements that you need to follow in order to stay compliant with current law, many of which are tied to keeping detailed records.
What Documents Should I Use?
To start with, you need policies to hand out to your employees. Even though the federal poster puts them on notice of their ability to take paid leave under the FFCRA, that poster doesn’t cover what your requirements are. What forms do they need to fill out to request leave? When do they need to provide a doctor’s note? Who do they turn in the request form to? All of these questions and more need to be answered so your employees know what to do. You’ll need a separate policy for EPSL and leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA), because the conditions under which employees can take time off differ between the two.
You’ll also need request forms for employees to use so they can ask for EFMLEA leave or EPSL. Any general sick leave or PTO you may have under an existing policy should be requested using a different form. These should be detailed so that you know what symptoms employees are experiencing, what type of leave they are requesting, how long they will be absent, etc.
There a few contracts you may want to have your employees sign, as well. Telecommuting is the new normal for a lot of businesses now that shelter-in-place orders are in effect. But working from home presents a lot of issues that otherwise wouldn’t exist if employees were in the workplace. Employees are now taking home company property in the form of laptops, tablets, cell phones and the like, along with all the confidential and proprietary information they may contain. You want to make sure that employees are still being responsible with your company’s sensitive information, now that it is more accessible than before.
You should also consider tweaking certain employees’ confidentiality obligations. It might be necessary to designate additional employees to handle leave requests. Perhaps your current HR staff is unable to handle the volume of requests coming in, or you only have one person handling leave forms during the day shift and you need someone doing the same at night. Whatever the case may be, if you need a non-HR employee to begin handling these leave requests, you should change their current confidentiality obligations to include safekeeping of employee medical information.
Lastly, you should be using a checklist to make sure you’re taking all the requisite steps to stay in compliance with the law. Did you put up posters in the workplace? Have you provided every employee with a copy of your new EFMLEA and EPSL policies? When you’ve collected a leave request, did you record it in the proper file? You should handle these cases in a methodical manner to make sure that you aren’t skipping any important steps. One other suggestion we have to help ensure all the necessary steps are taken is naming a pandemic coordinator. Putting someone in charge of understanding these laws and implementing your company policies can be a great help in streamlining the process and keeping communication clear.
Where Can I Get These Documents?
You’re in luck! Navigant has put together a full package of forms, policies, and checklists for you to use during the coronavirus pandemic. Our FFCRA Package has all the documents described above and more to help you stay in compliance with all these confusing laws. We’re offering a package of 12 documents for a flat-fee of $200. If you’re interested, contact Susan Dawson at sdawson@navigantlaw.com for more information.
Should you have any questions about business law or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.
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Phone: (847) 253-8800
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