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Record Keeping Requirements to Receive FFCRA IRS Tax Credit

Employee Requirements The employee must provide documentation to their employer containing the following information prior to taking Paid Sick Leave under the Emergency Paid Sick Leave Act (EPSLA) or Expanded Family and Medical Leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA):

  1. Employee’s name;
  2. Date(s) for which leave is requested;
  3. COVID-19 qualifying reason for leave; and
  4. A statement representing that the employee is unable to work (or telework) as a result of the COVID-19 qualifying reason.

These initial employee requirements are consistent with the Leave Request Form developed by BMD’s Labor & Employment team.

In addition, to be eligible for Paid Sick Leave under Sections 826.20(a)(1)(iii)-(iv) — the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis or is caring for someone experiencing symptoms of COVID-19 — the employee must additionally provide their employer with either:

  1. The name of the government entity that issued the Quarantine or Isolation Order to which the individual being cared for is subject; or
  2. The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.

To be eligible for Paid Sick Leave under Sections 826.20(a)(1)(v) or Expanded Family and Medical Leave — the employee is caring for a child whose school or childcare is closed — the employee must additionally provide their employer with:

  1. The name of the son or daughter being cared for;
  2. The name of the school, place of care, or childcare provider that has closed or become unavailable; and
  3. A statement representing that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave (this includes spouses and is a request where employers can nail down specifics). The DOL issued additional guidance that this payment should not be made if there is another suitable parent or individual residing inside the house.

Although these documents and information are provided by the employee, they should be retained by the employer. Beyond the above requirements, an employer may additionally request any material needed for the employer to support a request for tax credits under the FFCRA.

Employer Requirements

An employer is required to retain all documentation relevant to FFCRA leave for a period of no less than four (4) years (best practice is 7 years), regardless of whether leave was granted or denied. Additionally, if an employee provides any oral statement(s) to support their time off, the employer is required to document and maintain that information for four (4) years.

If an employer believes it qualifies for the small business exception, and accordingly denies an employee’s request pursuant to Section 826.40(b), the employer must document the determination and retain that information for four (4) years (best practice is 7 years).

In order to claim tax credits from the IRS, the Department of Labor advised that employers should retain the following:

  1. Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework and Paid Sick Leave and Expanded Family and Medical Leave;
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
  3. Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
  4. Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and
  5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

For questions, or more information, please contact any member of BMD’s Employment/Labor Law team.

HHS Announces an Additional $20 Billion In Provider Relief Grants

The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.

DOL Proposes New Rule Regarding Independent Contractor Status - But How Will the Election Affect Its Future?

On September 22, 2020, the U.S. Department of Labor announced a new proposed rule regarding employee and independent contractor status under the Fair Labor Standards Act. The full text of the proposed rule is available here. The rule's drafters intend to reduce uncertainty and enhance the precision and predictability of the long-standing "economic reality" test, which currently relies on a multifactor balancing test.

Major Change to Franklin County, Ohio Eviction Process: Landlord Testimony Required

Although there is currently a nationwide temporary halt on all residential evictions through December 31, 2020 in place, the eviction process in Franklin County – which processes the highest number of evictions in the State of Ohio at approximately 18,000 a year – recently changed significantly.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.