Documenting Leave: The IRS Perspective

Yesterday, the IRS provided some answers to frequently asked questions around the Families First Coronavirus Response Act (FFCRA).  The answers uncover one of the most pressing issues for small businesses preparing to provide paid sick leave and expanded FMLA under the act – how to document the leave. Why the IRS?  Remember, the leaves have tax credits attached to them, so if you want the tax credits, you need to follow both DOL and IRS rules.

The IRS requires that the leave request must be in WRITING and include:

  1. The employee’s name,
  2. The date or dates the employee is requesting leave,
  3. A statement of the COVID-19 related reason the employee can’t work (or telework) and written support for the reason, and
  4. A statement that the employee is unable to work for that reason.

Let’s game this out.  Tim from your manufacturing floor calls and says he needs to self-isolate because his live-in girlfriend tests positive for COVID-19.  Here’s the conversation:

  • Tim:     I can’t leave my house, Suzie has COVID-19.
  • You:     Oh no.  Is she okay?
  • Tim:     She’s okay now, but I’m afraid I could get it.
  • You:     Are you okay?
  • Tim:     I think so.
  • You:     Have you spoken with a healthcare provider?
  • Tim:     No.
  • You:     Tim, there are paid leaves available to you in situations like this. In order to get those leaves, I need you to talk with your healthcare provider about what you should be doing.
  • Tim:  I’ll call now.

Tim calls his doctor and calls you back.

  • Tim:     I need to self-quarantine.
  • You:     Ok.  How long?
  • Tim:     Two weeks.  Am I going to lose my job?
  • You:     Not for this, Tim!  This is exactly why we have this new paid leave available.  Ok, can you please send me an email saying you spoke with your healthcare provider (I’ll need their name), they told you to self-quarantine for two weeks because of exposure to COVID-19, and that you want to use the leave because you can’t come in?
  • Tim:     I can do that.
  • You:     Great.  Once I get the email, I respond confirming the leave and providing you a calculation of what you’ll earn during those two weeks.  Is there anything else you need?  Do you have enough groceries?
  • Tim:     I think so.
  • You:     If you don’t, let me know.  I know there are some services that could deliver some. We want you to stay safe, Ok?  Let us know if anything changes.

You are then going to take Tim’s email and your response and file it away in Tim’s medical file and document Tim’s situation in an Xcel document so if you need to produce the document to the IRS, you know who received the leave and where to find the email.  Remember, Tim’s medical file can be held electronically as long as it is secured.

Let’s do another one.  Maria has two little kids from home, ages 3 and 5.  She’s able to work from home, but often the kids get in the way. She calls you.

  • Maria: I’m struggling with the kids being at home.
  • You:     I get that.  Are you able to get work done or is there something we can do to help?
  • Maria: My manager seems to be okay with me working half-time because I’m really only able to work about that because the kids, you know?
  • You:     The kids aren’t in school or daycare?
  • Maria: Duh! Yes, COVID has all of them closed.
  • You:     Ok.  There are some paid leaves available for you that we can use half-time.  Do you want to try that?
  • Maria: What do you mean?
  • You:     Well, because your kids are at home, we could put you out on paid sick leave because the schools are closed because of COVID.  I’ll need you to send me an email saying that along with the school and daycare’s name.  Can you do that?
  • Maria: Yes!  How much will I get paid?
  • You:     The paid sick leave is up to $200 per day for childcare needs, so if you need it half time, you’d get your regular rate for a half day and then $100 for the rest of the day.  Is that okay?
  • Maria: Better than losing my job or nothing, so, I guess.
    You:     Once you send me the email, I’ll respond confirming all of this.  If there’s something missing in the email, I’ll let you know, okay?
  • Maria: Ok.
  • You:     We want you and your family to stay healthy and safe. Okay?  If there’s anything else we can do let me know.
  • Maria: Can you help smooth this over with my boss?
  • You:     I can certainly try.  We understand that this is new for everyone and we’re going to give you as much grace as we can.  Just do your best, okay?
  • Maria: Thank you.  I will.

You’re going to then going to take Maria’s email and your response and put it in Maria’s personnel file.  You’re going to track Maria in your Xcel spreadsheet next to Tim as well.  You’re also going to grab your governor’s order closing schools from the governor’s website, so if you ever need to produce information for the IRS, you know to grab the emails from Maria’s files with the governor’s order.

These should be the most common conversations about these leaves. If you have any questions, please feel free to contact me.  We can go through them.

I’m going to hold another webinar tomorrow at 10 AM CDT to go over documentation and any other guidance (DOL regs expected) that comes out today.  You can join by clicking here.  The password for the webinar is 130798.  (We need the password to hopefully stop zoombombing.)

Photo by Kelly Sikkema on Unsplash

March 25 @ 9 AM Webinar

Howdy all!  Thank you to the hundreds of people who attended today.  Below is the recording.  Also, here are a few links:

Please take a look at these.  As always, if you have questions, feel free to email me at kbischoff@thrivelawconsulting.com

Special thank you to my friend, Erin Hargrove of The Horton Group for helping me today!!

As Promised, the Webinar

Thank you to all that attended today’s COVID19 webinar.  For those who were unable to attend, here is the recording:

Please note! There is a debate raging over whether a shelter-in-place order will be considered a government quarantine. I believe it is, a couple other attorneys I know disagree.

COVID Continuing

Hello all!  We now have the Families First Coronavirus Response Act (FFCRA).  Because so many of you have questions, I’m going to do another webinar tomorrow, March 20 @ 1 pm CDT.  Again, no need to register, just click this here at that time.

In the meantime, if you want to learn more, check out these resources:

I can’t thank these people enough for helping parse through this new legislation and being a source for me to ask all sorts of silly questions.

Preventing Panic

Knowing that anxiety is high among HR professionals and business owners, Heather Kinzie and I held a coronavirus/COVID-19 conversation about the following questions:

  • What should the employer communicate to its workforce?
  • What health information does the employer have the right to know regarding this issue?
  • What is the employer obligated to pay for?

The recording of a portion of the recording is below.

We’ll hold another one next week at 12 pm CDT/9 am AK.  Just click here at that time.

 

Coronavirus Confidential

Yesterday, Charlie in Accounting had the sniffles.  He hasn’t come into work today.  Tomorrow, he calls you in HR and tells you that he tested positive for coronavirus.  Does this bit of information change what you’ve been doing?  I posted a poll on Twitter yesterday, and here’s the result:

IMG_F9D42C9A6B03-1

Over the past couple of weeks, we’ve learned a lot more about the coronavirus and how to prepare for a possible pandemic.  We know we should be washing our hands, not touching our faces, preparing for folks to work from home when they can, researching business interruption insurance to see if it will cover payroll if coronavirus requires us to shutdown, reevaluating if we can afford giving pay increases in light of financial outlooks, and communicating to employees how to prepare.  All of these are important steps to take.

It’s awesome to be prepared.  It is also important to look at our obligations as an employer.  As a worry-wart employment lawyer, one obligation leaps out when we start talking about coronavirus – the obligation to keep medical information confidential.  In a normal, non-pandemic situation, we would not be able to share that Charlie has cancer, arthritis, or any other medical condition.  A pandemic doesn’t change this.  If Charlie tests positive, we can’t share that with employees.  The fact that we know shouldn’t change what we’re doing.  Prepare as though it will hit your neighborhood so that when it does, you don’t violate the ADA.

Now, you might be thinking about moral obligations.  Shouldn’t we be able to tell Suzy because her elderly mother lives with her or Jamal because his kid gets sick a lot?  The answer is still no.  We should tell employees now that when coronavirus gets to our area, they will need to make decisions, like working from home or taking increased PTO, as they are necessary and that we’ll be doing everything we can to keep our workplace safe and healthy, like telling people not to come to work when they’re sick.  Yes, this is hard.

Review the EEOC’s pandemic guidance.  It’s from 2009 but recently re-upped given coronavirus.  Here are some key takeaways for you:

  • You can and SHOULD increase infection-control practices like handwashing and increased cleanings of offices and surfaces
  • You can’t take every employee’s temperature as they enter your offices unless the CDC tells you to
  • You can’t ask employees if they have a disease that makes them more susceptible to the virus
  • You can’t require employees to get a vaccine as religion and disability may prevent it for some employees
  • You can tell employees not to come to work when they’re sick and you can send them home

Instead of waiting for Charlie to get tested, let’s get prepared.  Here are some great resources that may be helpful for you:

  • Check out the University of Minnesota’s CIDRAP center for all the news and maps that you might need
  • Check out Dan Schwartz’s blog for updates on how to prepare
  • Joey Price has a webinar on Tuesday (3/10) for HR on how to prepare
  • HR Bartender posted some tips
  • Listen to Heather Kinzie and I talk about practical tips on how to handle coronavirus on Thursday (3/12) at 4 pm CDT/1 pm AK – no registration necessary!
  • Jeff Nowak has a webinar on Thursday (3/12) on preparedness, the ADA, and FMLA

Now, go get some more soap!