This summary focuses on the six 6 triggering events for an employee to qualify for Emergency Paid Sick Leave (ESL), and outlines the additional guidance provided by the DOL regulations on when ESL should be paid.
The FFCRA provides for ESL, where a qualifying employee cannot work or telework, because the employee:
- Is subject to a federal, state, or local quarantine or self-isolation order related to COVID-19.
- Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
- Is experiencing symptoms of COVID-19 and seeking a medical diagnosis
- Is caring for an individual who is subject to a quarantine or self-isolation order as described in (1) above, or has been advised as described in (2), above.
- Is caring for a son or daughter whose school or place of care has been closed, or the child care provider is unavailable, due to COVID-19 precautions.
- Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
While this statutory text provides covered employers with general direction, it also leaves open many questions as to the exact parameters of these qualifying reasons. The DOL regulations now answer many of those questions and, in fact, may substantially limit the use of ESL in certain circumstances.
Reason #1: Quarantine or Isolation Order
The DOL has clarified that an employee “subject to a quarantine or isolation order” may only use emergency paid sick leave if work (or telework) is available to the employee that the employee cannot perform due to the governmental order. This has particular significance where businesses are subject to shutdown orders. In instances where an entire business is shut down due to a governmental order, emergency paid sick leave is not available to the employee, because there is no work (or telework) to perform. (Note: this limitation does not apply solely to Reason #1. ESL is not available to any employee for any reason if no work is available, because the employer is closed for any reason, including a government shutdown order.)
Reason #3: Seeking Medical Diagnosis
In order for an employee to use emergency paid sick leave when she believes she may have COVID-19, the employee must take “affirmative steps” to get a medical diagnosis “such as making, waiting for, or attending an appointment.” An employee will not qualify under Reason #3 if she simply believes that she may have COVID-19 but does not take affirmative steps, nor will the employee qualify simply because she has been asked to remain home by the employer, even when related to COVID-19 concerns.
Reason #4: Caring for an Individual
The DOL has clarified that an individual includes an employee’s immediate family member, a person who regularly resides in the Employee’s home, 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 were quarantined or self-quarantined.” So, while the term does not include just any individual, the DOL has also left open what type of relationship “creates an expectation” of care. Employers will be left to navigate this in good faith and likely without further guidance from the DOL.
Reason #5: Caring for a Child
Even before the issuance of the DOL regulations, the need for an employee to be home to care for a child due to school closure or the unavailability of child appeared to be one of the simpler reasons to manage. While the DOL did not upend the general understanding of this reason for leave, it did clarify that such leave is only available where there is “no other suitable person” to care for the child. This clarifying language is particularly meaningful in communities where schools and/or day cares have been closed for weeks in advance of the effective date of the FFCRA. While employers should not unreasonably deny this leave, they are free to ask the employee how he managed child care post-school or day closure but prior to April 1, 2020, in order to identify if another “suitable person” is available. Moreover, recent guidance from the IRS clarified that an employer may ask an employee to certify that his or her child over the age of 14 needs care during daylight hours.
Reason #6: Substantially Similar Condition
The FFCRA also included a catch-all opportunity for the DOL to define any substantially similar conditions that would qualify an employee to use emergency paid sick leave. At this time, while the DOL has reserved the right to later designate such conditions, there are no substantially similar conditions defined by the DOL. As a result, we currently believe that no employee should seek or be granted leave under Reason #6 at this time.
FFCRA Regulations Overview
- FFCRA Employee Eligibility, Including the “Healthcare Provider” Exemption
- Which Employers the FFCRA Applies to, and How Small Businesses Obtain an Exemption
- FFCRA Employer Notice Requirements
- FFCRA Employee Notice of Need for Leave Requirements
- Continued Healthcare Coverage and the Intersection with Other Laws
- FFCRA Return to Work Issues, Employee Record-Keeping Obligations and Prohibited Acts
- Calculating the paid benefits owed under the FFCRA
- Intermittent ESL and EFMLA Leave and the Interplay Between EFMLA/ESL and the FMLA
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