Even though the Department of Labor (DOL) has issued additional guidelines on the application of Families First Coronavirus Response Act (FFCRA), which is discussed below, several issues pertaining to its application remain unclear.
Whether a state or local shelter-at-home order furnishes a qualifying use of paid sick leave under FFCRA, remains slightly ambiguous.
If an employee is an “essential” worker who is exempt from the shelter-at-home order, then the shelter-at-home order will not alone qualify that employee for paid sick leave. However, if the employee is 65+ years old or has health conditions that make him/her high risk, then the shelter-at-home order likely is sufficient to qualify the employee to use paid leave under FFCRA, even if the employee is an essential worker.
If the employee is not an essential worker and is not working because the employer has closed its business due to a shelter-at-home order, the employee does not qualify for paid leave under the FFCRA.
If the employee has symptoms of Covid-19 and decides to self-quarantine, the DOL advises that the employee is not eligible for paid sick leave unless the employee is seeking a medical diagnosis and/or has been advised by a medical provider to self-quarantine.
If the employee is taking leave to care for someone who is subject to a shelter at home order, it is unclear whether the employee must care for someone who is 65+ years old and/or has health conditions that render the person high risk.
The DOL guidance on the substitution of paid leave during expanded Family Medical Leave Act (FMLA) leave due to the need to care for a child whose school/childcare has closed, remains uncertain. Some of the regulations suggest that an employee may be required to utilize previously accrued paid time off during expanded FMLA school closure leave and that such leave runs concurrently with the paid, expanded FMLA leave provided under the FFCRA. However, other regulations state an employee may elect to, but may not be required to, utilize previously accrued paid time off. The DOL‘s additional guidance now states that after the first two weeks of expanded FMLA/school closure leave, an employee may elect or may be required to use previously accrued paid time off which will run concurrently with the pay provided under the FFCRA for that 10-week period. This guidance, however, directly conflicts with the express language of the FFCRA. Therefore, employers should not require the use of any previously accrued paid time off for an employee using expanded FMLA leave under the FFCRA. However, an employer may agree with an employee to allow the employee to use previously accrued paid leave in order to supplement the 2/3 pay they are receiving under the FFCRA, while recognizing that the employer will only receive the payroll tax credit for the amount of pay required by the
For purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that cause an employee to be unable to work (or to telework) even though the employer has work that the employee could perform but for the order. The employee may not take paid sick leave for this qualifying reason if the employer does not have work for the employee as a result of a shelter-in-place or a stay-at-home order.
An employee is eligible for paid sick leave if a health care provider directs or advises the employee to stay home or otherwise quarantine because the health care provider believes that the employee may have COVID-19 or are particularly vulnerable to COVID-19, and quarantining based upon that advice prevents the employee from working (or teleworking).
If an employee becomes ill with COVID-19 symptoms, the employee may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health care provider otherwise advises the employee to self-quarantine. If the employee tests positive for the virus or is advised by a health care provider to self-quarantine, the employee may continue to take paid sick leave. The employee may not take paid sick leave under the FFCRA if the employee unilaterally decides to self-
quarantine for an illness without medical advice, even if the employee has COVID-19 symptoms. An employee may not take paid sick leave under the FFCRA if the employee becomes ill with an illness not related to COVID-19.
An employee may take paid sick leave to care for an individual who, as a result of being subject to a quarantine or isolation order, is unable to care for him or herself and depends on the employee for care and if providing care prevents the employee from working and from teleworking.
An employee may only take paid sick leave to care for an individual who genuinely needs the employee’s care, such as immediate family member or someone who regularly resides in the employee’s home. The employee may also take paid sick leave to care for someone if the employee’s relationship creates an expectation that the employee would care for the person in a quarantine or self-quarantine situation, and that individual depends on the employee for care during the quarantine or self-quarantine.
An employee may not take paid sick leave to care for someone with whom the employee has no relationship. In addition, an employee cannot take paid sick leave to care for someone who does not expect or depend on the employee’s care during his or her quarantine or self-quarantine.
Under the FFCRA, paid sick leave and expanded family and medical leave include leave to care for one (or more) of an employee’s children when his or her school or place of care is closed or child care provider is unavailable, due to COVID-19 related reasons. This leave may only be taken to care for the employee’s non-disabled child if he or she is under the age of 18. If the child is 18 years of age or older with a disability and cannot care for him or herself due to that disability, the employee may take paid sick leave and expanded family and medical leave to care for him or her if his or her school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 related reasons, and the employee is unable to work or telework as a result.
Paid sick leave is also available to care for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. If an employee has a need to care for the employee’s child age 18 or older who needs care for these circumstances, the employee may take paid sick leave if the employee is unable to work or telework as a result of providing care. In no event may the employee’s total paid sick leave exceed two weeks.
An employee may take paid sick leave or expanded family and medical leave to care for the employee’s child only when the employee needs to, and actually is, caring for the child if the employee is unable to work or telework as a result of providing care. Generally, an employee does not need to take such leave if a co-parent, co-guardian, or the employee’s usual child care provider is available to provide the care the child needs.
Regardless of how an employer classifies or counts internal or staffed workers, the employer must provide paid sick leave and expanded family and medical leave to workers who are the employer’s “employees” for purposes of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. The employer may be a joint employer, and if so, the employer must include in its count all employees on its payroll, even if the employer provides or leave.
In general, an employee may not take paid sick leave or expanded family and medical leave if the employee is receiving workers’ compensation or temporary disability benefits through the employer or a state-provided plan, unless the employee was able to return to light duty before taking leave. If the employee receives workers’ compensation or temporary disability benefits because the employee is unable to work, the employee may not take paid sick leave or expanded family and medical leave. However, if the employee was able to return to light duty and a qualifying reason prevents the employee from working, the employee may take paid sick leave or expanded family and medical leave, as the situation warrants.
Whether an employee is entitled to paid sick leave while on a leave of absence depends on whether the leave of absence is voluntary or mandatory. If voluntary, the employee may end the leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents the employee from being able to work (or telework). However, an employee may not take paid sick leave or expanded family and medical leave under the FFCRA if the leave of absence is mandatory. In the instance of a mandatory leave of absence, the employee may be eligible for unemployment insurance benefits.
During the first two weeks of unpaid expanded family and medical leave, an employee may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless the employer agrees to allow the employee to supplement the amount the employee receives from paid sick leave with the employee’s preexisting paid leave, up to the employee’s normal earnings. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, however, the employee may elect—or be required by your employer—to take the remaining expanded family and medical leave at the same time as any existing paid leave that, under the employer’s policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if the employee is not ill.
If an employee is required to take existing leave concurrently with the remaining expanded family and medical leave, the employer must pay the employee the full amount to which the employee is entitled under the existing paid leave policy for the period of leave taken. If the employee exhausts preexisting paid leave and still is entitled to additional expanded family and medical leave, the employer must pay the employee at least 2/3 of the employee’s pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
