Minimizing Risk Under The Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) will help small-to-midsize businesses offer paid leave to employees who cannot work as a result of the COVID-19 pandemic. However, as with many good things, FFCRA is double-edged. The Act provides much needed benefits, but it comes with a considerable burden of substantiation (“BS”).

Through the FFCRA, the federal government will grant tax exemptions and credits.  Wherever there is federal money, inevitably there will be detailed reporting requirements and audits. So how do you keep the BS down to a tolerable level? More importantly, how can you minimize the possibility that your request for reimbursement under the Act will be challenged or even rejected? Recordkeeping.

Fundamentally, you have to categorize leave the way that the Act does. Key categories are mandated quarantine, self-quarantine as advised by a healthcare provider (experiencing COVID-19 symptoms and waiting for diagnosis), caring for someone under quarantine and caring for a child if the child’s school or daycare provider is closed or otherwise unavailable due to the pandemic. In each instance, documentation that clearly justifies the choice of leave type will be required.

That’s only the beginning. To take an example, FFCRA refers to “bona fide” needs. It won’t be enough to claim the emergency leave and subsequent EFML benefit, simply to have a child whose school has closed.  Caring for the child must prevent you from being able to work or telework. If your job is the kind where you can telework, it may be hard to demonstrate that the child needs a prohibitive amount of attention. When benefits are disallowed, the employer is left holding the bag.  For self-protection, the employer may need to seek intrusive information on the extent of care a particular child requires. 

Other scenarios? Consider households where there are two or more employed, potential caregivers. Assuming that only one caregiver is needed, whose employer should provide the leave under the Act? Put differently, which employer could be charged with being in violation?

Document. Document. Document.

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