DOL Provides More Guidance on Understanding on the Families First Coronavirus Response Act

This Tip is only the latest in our series of updates on the Families First Coronavirus Response Act (FFCRA).  For earlier primers, analysis and updates go to www.myhrgenius.co and www.thompsoncoe.com.

Less than four weeks ago, the FFCRA was signed into law providing paid sick leave to employees under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Since the enactment of the FFCRA, the Department of Labor has consistently released much-needed information on how employers can comply with the Act. Over this past weekend, the DOL released guidance on the following issues:

Shelter-In-Place Orders

Up until now, it has been unclear whether “shelter-in-place” orders issued by state and local governments could trigger an entitlement to paid leave under the EPSLA. The DOL clarified that employees who have work to do, but are unable to work or telework because of a government mandate to “shelter-in-place,” may be eligible for paid sick leave. However, this is not the case if the employer has no work for the employee to do. (In this circumstance, the employee is probably eligible for unemployment compensation).

Paid Sick Leave to Self-Quarantine

Employees who are unable to work because they are self-quarantining are eligible to receive paid leave under the EPSLA if they have been advised by a health care provider to self-isolate because the individual may have COVID-19 or because the health care provider believes the employee may be particularly vulnerable to COVID-19

Sick Employees Who Don’t Seek Medical Advice

Some employees may decide to self-isolate when they begin experiencing symptoms of COVID-19. Employees should receive paid leave under the EPSLA when they begin experiencing symptoms up until they receive a diagnosis, and should continue receiving the paid leave (up to 80 hours) if they are advised by a health care provider to self-isolate. However, if the employee does not seek a diagnosis, or any other medical advice, they are not entitled to paid leave under the EPSLA.

Employees Who Can Telework

Employees are only eligible for paid leave under the EPSLA if they are unable to work or telework for one of the reasons enumerated in the Act. If the employee has been advised to self-isolate, but their condition permits them to continue teleworking, then they should continue working instead of receiving paid leave under the EPSLA. However, if the employee has the ability to telework but cannot do so because of debilitating effects of COVID-19, then the employee should be permitted to take paid leave under the EPSLA.

Caring for Someone Who Is Self-Quarantining

An employee is only eligible to receive paid sick leave under the EPSLA when they are caring for someone who is has been ordered to self-quarantine due to concerns with COVID-19 if the person is a member of the employee’s household or is someone who the employee would otherwise be expected to care for in such a situation. Such leave is only covered by the act when the family member was instructed by health care provider to self-isolate.

Caring for Older Children

An employee may take paid leave under the EPSLA and the EFMLEA if they need to care for their minor child because the child’s school or place of care is closed due to the COVID-19 pandemic. This is true for children up to 17 years old. If the child is 18 or older, and is not disabled, then this leave is unavailable to the employee. However, leave should only be taken when the employee actually cannot work or telework because they are caring for a child. If an employee’s child is home because their school has been closed due to COVID-19, but the employee isn’t actually caring for the child in a way that prohibits them from working, then the employee is not entitled to paid leave under the EPSLA and EFMLEA for that purpose.

Employees Receiving Workers’ Compensation Benefits

Workers who were receiving workers’ compensation benefits or temporary disability benefits because they are unable to work prior to the enactment of the FFCRA cannot receive paid leave under the EPSLA or the EFMLEA if they are still unable to work. If the employee had returned to work or light duty work, then they may be eligible for paid leave under the EPSLA and EFMLEA for work missed due to COVID-19.

Interaction with Other Leave

Employees on involuntary leaves of absence will not be entitled to take paid leave pursuant to the EPSLA or the EFMLEA. However, employees on voluntary leaves of absence who would otherwise qualify for leave under the EPSLA or the EFMLEA may end their voluntary leave and take paid leave under the FFCRA.

Enforcement

The DOL will not bring enforcement actions for violations of the FFCRA that occur between March 18 and April 17, so long as the employer has made good faith efforts to comply with the Act. If employers have not remedied any violations by April 18, the DOL can retroactively enforce the Act and hold employers liable for the violations made within that timeframe.

Going Forward

Employers have an obligation to make good faith efforts to comply with the FFCRA. Though we hope the effects of the COVID-19 pandemic will subside sooner rather than later, most small businesses will have to interact with the FFCRA at some point or another. Accordingly, it is important for employers to become familiar with the FFCRA.

MyHRgenius and Thompson Coe continue to monitor these new HR laws and their impact on employers throughout the country.  For more information, including webinars, primers, summaries, and podcasts on COVID-19 go to www.myhrgenius.co or www.thompsoncoe.com or call 651-389-5080.  For information on our HR legal support program call or visit the myHRgenius website.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.