On April 3, 2020, the Department of Labor (DOL) released its fourth round of Guidance regarding the Families First Coronavirus Response Act (FFCRA) in Q&A format. The new Guidance was released on the heels of the DOL’s 125-page temporary rule, our analysis of which can be found here.
The new Guidance provides additional information about Stay at Home/Shelter in Place orders, sick leave used to care for another individual, its position on non-enforcement, and more.
- When can an employee take EPSL to quarantine or isolate?
The new Guidance reiterates, as we previously noted, that governmental Shelter in Place (SIP)/Stay at Home (SAH) orders may allow an employee to qualify for EPSL unless the employer does not have work available for the employee (e.g., employee does not qualify if they can telework, or the business is shut down due to the SIP/SAH, etc.).
Notably, the Guidance also addresses employees who wish to use EPSL to self-quarantine. The Guidance explicitly states: “If you become ill with COVID-19 symptoms, you may take paid sick leave … only to seek a medical diagnosis or if a healthcare provider otherwise advises you to self-quarantine.” In other words, employees may not take EPSL if they “unilaterally decide to self-quarantine for an illness without medical advice, even if [they] have COVID-19 symptoms.”
- What about employees who need to care for another individual subject to a quarantine order or self-quarantine?
As the DOL’s temporary rule stated, an employee may take leave to care of “an immediate family member, 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 he or she self-quarantined or was quarantined.”
The Guidance adds that this rule is intended to allow employees to care for those who can’t care for themselves and such care prevents the employee from working or teleworking. In other words, the leave is available to care for an individual who “genuinely needs” the employee’s care. This does not include individuals who do not expect or depend on the employee’s care during their quarantine.
Further, the Guidance confirms that, to be eligible to take EPSL to care for another individual, a health care provider has to advise that individual to stay home or otherwise quarantine themselves because they may have COVID-19 or is particularly vulnerable to COVID-19.
- What is a “place of care” and who is a “child care provider”?
Though the answer may seem obvious, the Guidance states that a “place of care” is a physical location in which care for a child is provided, but the physical location does not have to be solely dedicated to such care. Examples include: day care, preschool, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care program. This includes schools or other places of care that have moved to online instruction if the physical location is now closed.
A “child care provider” includes paid providers (e.g., nannies, au pairs, and babysitters), and unpaid providers (e.g., grandparents, aunts, uncles, neighbors, etc.).
- What does a “substantially similar condition” as specified by the U.S. Department of Health and Services mean, and when are employees eligible for sick leave under such condition?
The Guidance notes that HHS has not yet identified what a “substantially similar condition” means, but goes on to state that DOL may issue future guidance on this issue if HHS does not.
- How does workers’ compensation and temporary disability benefits, and employer approved leaves of absence impact paid leave entitlements?
The Guidance states an employee is ineligible for paid leave under the FFCRA if the employee was receiving workers’ compensation or temporary disability benefits – unless they were able to return to light duty before taking paid leave.
Similarly, if an employee was on a voluntary leave of absence, the employee may end their leave and begin taking EPSL or paid medical leave if they have a qualifying reason. On the other hand, paid leave under FFCRA is unavailable for individuals on a mandatory leave of absence.
- When will DOL begin enforcement?
The Guidance states DOL will not bring enforcement actions for violations of the FFCRA occurring through April 17, 2020, provided the employer made reasonable, good faith efforts to comply with the law. Willful violations, failure to provide a written commitment to future compliance, or failure to remedy a violation may result in enforcement action for violations prior to and including April 17.
If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.
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