NAVIGATING THE COVID-19 PANDEMIC: NCASEF Educational Webinars For Franchisees Round 2

By Rob Bernstein, Esq., Partner, Laner Muchin, Ltd.

On April 23 and April 28, 2020, as NCASEF’s Labor and Employment attor-ney, I conducted a second round of webi-nars for franchisees surrounding best practices to protect their 7-Eleven businesses during the COVID-19 pandemic. This time around the webinars focused on a detailed discussion of the steps that should be taken to ensure proper completion of the Employee Request and Employer Response FFCRA (Families First Coronavirus Response Act) Forms that have been sent out to all franchisees, and the importance of obtaining supporting documentation from employees for their leave requests under the FFCRA.

FFCRA EFFECTIVE DATE/COVERAGE
As a reminder, the FFCRA went into effect on April 1, 2020 and its requirements will expire on December 31, 2020. The FFCRA applies to private sector employers with fewer than 500 employees, which is the vast majority of our franchisee population.

NOTICE OF THE NEED FOR FFCRA LEAVE
Our first webinar topic was whether or not advance notice by an employee is required for the employee to take FFCRA leave. I discussed how advance notice is required only when the need for leave is to care for a child due to a school closure, or child care provider unavailabil-ity, and is foreseeable by the employee (Qualifying Reason No. 5). The employee must give such notice to the franchisee as soon as practicable. Advance notice cannot be required for leave for any other FFCRA qualifying reason (Qualifying Reasons Nos. 1 through 4 and 6). Instead, an employee can be required to follow reasonable notice procedures only after the first day of the leave.

Notice from the employee may be oral and need only provide the franchisee with enough information to determine whether the requested leave is covered by the Emergency Paid Sick Leave or Expanded Family Medical Leave aspects of the FFCRA. Notice may be provided by an employee’s spokesperson (e.g., spouse, adult, family member, or other re-sponsible party). Franchisees should also note that even if an employee fails to provide oral notice, the franchisee may only bring the failure to provide such notice to the employee’s attention and must still provide the employee an opportunity to provide the required supporting FFCRA documentation prior to denying an employee’s leave request. 

A DEEPER DIVE INTO THE FFCRA EMPLOYEE REQUEST AND EMPLOYER RESPONSE FORMS AND SUPPORTING DOCUMENTATION
In previous webinars, I emphasized that franchisees must keep careful records of all documentation as it relates to each employee’s leave request under the FFCRA. These records include the Employee Request and Employer Response FFCRA Forms that have been distributed to all franchisees. In the April 23 and 28 webinars, I walked franchisees through the steps that should be taken to ensure proper completion of the Employee Request and Employer Response FFCRA Forms.

In any instance where the franchisee is put on notice by an employee or an employee’s spokesperson that the employee may satisfy one of the six qualifying reasons to take FFCRA leave, the franchisee should promptly give the Employee Request Form to the employee for the employee to complete. The crux of the Employee Request Form is that the employee must notify the franchisee of the starting and ending dates of his/her requested FFCRA leave and the employee’s asserted qualifying reason for the leave (employees are asked on the Form to state which of the six Qualifying Reasons apply to their leave request).

At the end of the Form, the employee must sign off and date the Form, certifying that the information on the Form is true and correct to the best of his/her knowledge and acknowledging that they further understand that any false statement may result in disciplinary action, including termination of employment. Franchisees should note that before taking disciplinary action or terminating an employee as it relates to their completion of the Employee Request Form, I strongly encourage the franchisee to contact me or one of the members of my team to discuss the situation first.

SUPPORTING DOCUMENTATION FOR THE EMPLOYEE’S FFCRA LEAVE
I next discussed how it is important for the franchisees, at the same time they give the employee the Employee Request Form to complete, to request that the employee provide supporting documentation for their FFCRA leave request (assuming the employee has not already given the franchisee such documentation). Depending on the reason for which the employee is seeking to take FFCRA leave, the type of supporting documentation will vary. To assist the franchisees (and employees), the type of supporting documentation that an employee needs to provide is set forth under each respective Qualifying Reason on the Employee Request Form.

I went through the different types of supporting documentation that the franchisees should require employees to provide to support their requests for FFCRA leave. For Qualifying Reason No. 1 on the Employee Request Form, the employee needs to provide a copy of the order requiring the quarantine and/or isolation order related to COVID-19. For Qualifying Reason No. 2 on the Form, the employee must provide a doctor’s note or medical documentation requiring the employee to quar-antine and/or isolate for COVID-19 related concerns. For Qualifying Reason No. 3 on the Form, the employee must provide a copy of the doctor’s note or medical docu-mentation to confirm that the employee sought treatment and/or a medical diagnosis for COVID-19 symptoms.

For Qualifying Reason No. 4, the employee must provide a doctor’s note or gov-ernmental order for the impacted family member or other individual for whom the employee is caring. For this Qualifying Reason No. 4 purpose, the term “other individual” means a roommate or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if the person were subject to a quarantine or isolation order. For Qualifying Reason No. 5, the employee must provide supporting documentation such as a notice that has been posted by the government, school or day care website, or published in a newspaper, or an email from an employee or official of the school, childcare facility, or regular child-care provider, reflecting the closure of the child’s school or childcare facility, or that the child’s regular childcare provider is unavail-able due to COVID-19 reasons.

And, finally, for Qualifying Reason No. 6, the employee must provide any and all supporting documentation so that the franchisee can make a reasonable determi-nation as to the need for the leave. Please note that, at this juncture, there has not been clarification from the government as to what is meant by the “substantially similar condition as specified by the U.S. Department of Health and Human Services” terminology for Qualifying Reason No. 6.

If any franchisee has a question as to whether an employee’s documentation is sufficient to support any of the qualifying reasons, or if a franchisee gets pushback from an employee regarding the production of the requested documentation, I once again strongly encourage the franchisee to contact me or a member of my team to discuss the situation to develop the most prudent approach.

EMPLOYER RESPONSE FORM
After the franchisee receives a sufficiently completed Employee Request Form and supporting documentation from the employee, the franchisee should promptly complete the Employer Response Form, notifying the employee whether their leave request has been ap-proved or denied and the corresponding details pertaining to the employee’s leave (e.g., the starting and ending dates of the leave, the employee’s expected return to work date and how the employee will be paid during their leave). The franchisee should sign and date the Employer Response Form and send a copy of the completed and signed Form to the employee. Upon receipt, the employee should also sign off on the Form, certifying that they have received the Form, and return a fully-executed Form to the franchisee. 

THE NEED TO MAINTAIN APPROPRIATE DOCUMENTATION SUPPORTING EMPLOYEES’ FFCRA LEAVES
We cannot overemphasize the importance for franchisees to keep copies of the completed Employee Request and Employer Response Forms and the supporting documentation for each employee FFCRA leave request in separate employee files (and if the Forms and/or supporting documentation contain medical information, in separate confidential medical files). Additionally, franchisees must keep documentation to show how they determined the amount of Emergency Paid Sick Leave and/or Expanded Family Medical Leave wages paid to employees eligible for the tax credit; documentation to show how the franchisee determined the amount of qualified health plan expenses allocated to wages paid (if applicable to the franchisee) in connection with the FFCRA leave requests; and copies of any completed quarterly federal employment tax returns (e.g., Form 941) and Form 7200 (Advance of Employer Credits Due to COVID-19), and any other filings that the franchisee submitted to the IRS requesting the tax credit. In order to receive the tax credits for the wages they pay for their employees’ leaves under the FFCRA, franchisees must keep all of the previously men-tioned documents and records for at least four years after the taxes become due. 

To read Rob Bernstein’s summary of his first set of seminars on Covid-19 for franchisees, see Avanti’s March/April, 2020 issue (page 45) at www.issuu.com/avantimag/docs or visit www.NCASEF.com (home page).