DOL issues 4th Q&A guidance on Families First Coronavirus Response Act
To assist employers in implementing the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) has issued a series of Q & A styled guidance. On April 3, 2020, the DOL issued a 4th set of questions and answers (Q. 60 – Q. 79) that dig into some of the specifics regarding when emergency paid sick leave (EPSL) and emergency FMLA (EFMLA) leave are available for use.
Understanding the reasons for emergency paid sick leave
Emergency paid sick leave is available for six specific reasons. The DOL delved into those reasons in its most recent guidance.
Paid sick leave for Federal, State, or local quarantine or isolation order related to COVID-19
First, the DOL guidance (and the new FFCRA regulations) confirm that for purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders issued by any Federal, State, or local government authority that causes 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.
Note, however, an employee may not take EPSL for this qualifying reason if the employer does not have work for the employee to perform as a result of a shelter-in-place or a stay-at-home order. In the instance where the employer does not have work for an employee as a result of a shelter-in-place or a stay-at-home order, the alternative is to seek unemployment compensation benefits. (Q. 60).
Paid sick leave to self-quarantine
An employee is eligible for EPSL 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 is particularly vulnerable to COVID-19, and quarantining based upon that advice prevents the employee from working (or teleworking). (Q. 61).
- What if an employee decides to quarantine herself for two weeks, and then return to work, but has not sought a medical diagnosis or the advice of a health care provider?
Generally, the employee is not eligible for EPSL in that circumstance. An employee may not take EPSL 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 only take EPSL to seek a medical diagnosis or if a health care provider otherwise advises the employee to self-quarantine. (Q. 62).
In addition, an employee who tests positive for the coronavirus or is advised by a health care provider to self-quarantine may continue to take EPSL.
Paid sick leave to care for someone who is subject to a quarantine or isolation order
An employee may take EPSL 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.
Furthermore, an employee may only take EPSL to care for an individual who genuinely needs the care. Such an individual includes an immediate family member or someone who regularly resides in the employee’s home. An employee may also take EPSL to care for someone if the 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 EPSL to care for someone with whom the employee has no relationship. (Q. 63).
- When is an employee eligible for paid sick leave to care for someone who is self-quarantining?
An employee may take EPSL to care for a self-quarantining individual if a health care provider has advised that individual to stay home or otherwise quarantine him or herself because the individual may have COVID-19 or is particularly vulnerable to COVID-19 and provision of care to that individual prevents the employee from working (or teleworking). (Q. 64).
Paid sick leave based on a “substantially similar condition” specified by the U.S. Department of Health and Human Services
The U.S. Department of Health and Human Services has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. If HHS does identify any such condition, the DOL will issue guidance explaining when an employee may take paid sick leave on the basis of a “substantially similar condition.” (Q. 73).
Understanding the child care reasons for EPSL and EFMLA
Both EPSL and EFMLA leave are available for an employee to care for his or her child under 18 whose school or place of care is closed or whose child care provider is unavailable, due to COVID-19 related reasons. The new guidance explores the parameters of the child care provisions of the FFCRA.
Paid sick leave or expanded family and medical leave to care for a child who is 18 years old or older
EPSL and EFMLA include leave to care for one (or more) children when the child’s 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 a 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 is not able to provide self-care due to that disability, the employee may take EPSL and EFMLA to care for the child 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. (Q. 66).
What is a “place of care”?
A “place of care” is a physical location in which care is provided for an employee’s child. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. (Q. 67).
Who is a “child care provider”?
According to the DOL’s guidance, a “child care provider” is someone who cares for the employee’s child. This includes individuals paid to provide child care, like nannies, au pairs, and babysitters. It also includes individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors. (Q. 68).
- Is EPSL or EFMLA available for more than one guardian simultaneously to care for the child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?
According to the DOL, an employee may take EPSL or EFMLA to care for their child only when the employee needs to, and actually is, caring for their 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 usual child care provider is available to provide child care. (Q. 69).
- If the school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?
Yes. If the physical location where the employee’s child received instruction or care is now closed, the school or place of care is “closed” for purposes of EPSL and EFMLA. This is true even if some or all instruction is provided online or through another format, such as “distance learning,” where the employee’s child is still expected or required to complete assignments. (Q. 70).
Guidance regarding use of EPSL and EFMLA with other types of leaves
May an employee use EPSL or EFMLA if the employee is receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan?
In general, no, unless the employee returned to work before taking use of the new FFCRA leaves. If an employee is receiving workers’ compensation or temporary disability benefits because the employee is unable to work, the employee may not take EPSL or EFMLA. However, if a qualifying COVID-19 related reason prevents the employees from working, the employee may take EPSL or EFMLA, as the situation warrants. (Q. 76).
May an employee use EPSL or EFMLA if the employee is on an employer-approved leave of absence?
It depends on the nature of the leave. If the leave of absence is voluntary, the employee may end the leave and begin taking EPSL or EFMLA under the FFCRA if a qualifying reason prevents the employee from being able to work (or telework). However, the employee may not take EPSL or EFMLA if the leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents the employee from working (or telework). (Q. 77).
The DOL’s full FFCRA guidance – now up to 79 questions- can found here: Families First Coronavirus Response Act: Questions and Answers at on the DOL website.
In addition to the new guidance, the DOL has posted a recorded webinar on the FFCRA, which can be found here.
The McDonald Hopkins Labor and Employment Response Team will continue to monitor developments and provide additional updates on the FFCRA and other employment issues impacted by the COVID-19 crisis.