We've posted before about the basics of leave tracking under the new FFCRA. A number of customers have already asked us to help them set up leave codes to help them track FFCRA-related leave. Then the EEOC released some guidelines for employers about Covid-19, suggesting that all Covid-19 related employee records must be treated like medical records.
So, that brings up the question: Are timesheets with charges to these FFCRA leave codes considered by the EEOC as protected health records?
I called the EEOC and one of their legal counsel told me: "it depends on how you name the FFCRA charge codes." If you call them, say, 'FFCRA 1' (for FFCRA reasons 1-3) and 'FFCRA 2' (for reasons 4-5) you can track the two different FFCRA pay rates and not give away any employee health information. If you call them 'Covid-19 Employee' and 'Covid-19 Caregiver' or something, those charges might convey employee health information and need to be protected as such.
So, according to the EEOC, be sufficiently vague when naming your FFCRA leave codes and you're in the clear. We'd suggest sticking to names that refer to the FFCRA and the two pay rates, like 'FFCRA full' and 'FFCRA two thirds,' and leave mentions of "Covid" or "coronavirus" out of it altogether.
