I don’t like it when the federal agencies don’t play fair. I previously blogged about the EEOC’s sneaky change in its position on whether sexual orientation discrimination is covered by Title VII (it revised its guidance without any kind of announcement. It was just suddenly… the exact opposite). And now, the Department of Labor has pulled the same trick with regard to its guidance on the Families First Coronavirus Response Act!

As a management-side attorney, I’ve been tracking the FFCRA developments closely. As enacted, the FFCRA left many open questions for employers struggling to figure out whether they were covered, how to implement it, how it worked with other leave, and other critical issues. The DOL is supposed to issue regulations on these issues – and given that regulations usually take many, many … many months, this time frame is quite literally warp speed for them.

But during this 14-day period between the FFCRA’s enactment and its effective date of April 1, we attorneys and our clients have been scrambling and guessing and speculating and second-guessing. And pending the regulations, the DOL has been stepping up with a slew of informal guidance – a fact sheet for employers, a fact sheet for employees, a FFCRA notice (in Spanish too!), a Frequently Asked Questions for the FFCRA notice … and, most helpfully, a detailed Questions and Answers on the FFCRA! After its initial release, the DOL has twice more added Q&As  to this incredibly valuable resource. And we employment attorneys have greeted each batch of Q&As with glee – giddy with relief finally to get answers to some of these important questions! Which is why the betrayal was so deep when we realized that the DOL sneakily and underhandedly changed one of its very helpful answers to make it, well, useless!

Specifically, companies want to know about whether and how they can verify an employee’s need for the FFCRA’s new paid leave entitlements. (Sadly, even in this crazy time, there will be some bad apple employees who may try to abuse these well-intentioned new efforts to help workers with legitimate needs). So we were delighted when the DOL provided us with the following specific Q&A ( in relevant part):

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

If one of your employees takes paid sick leave under the Emergency Paid Sick Leave Act, you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised you to self-quarantine. For example, this documentation may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

That was helpful – it gave us a list – A LIST – of what kind of documentation of the reason for leave may be required!! Champagne corks flying! Confetti dropping! But wait…..

Late on Saturday morning, my astute partner, Teresa Teare, said to me, “Hey, I think the Q&A changed on verification. The list is gone.” I told her she was crazy – I had just looked at the list earlier that morning. But then I went back and checked. And it was, indeed, gone… Without any kind of announcement. In its place – what’s currently in the Q&A – is this completely useless substitute:

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

Um, what? What IRS forms, instructions, or information? Because I can tell you that I have haunted the IRS website ever since, and there are no such forms, instructions, or information in sight! I’m desperately praying they’ll post some before the law becomes effective TOMORROW!!

In the meantime, I am bitter. Thanks a lot, DOL.

P.S. Update – The IRS released its guidance (finally) on the evening of March 31. Just before the effective date! You can see our post on the IRS’ guidance here.