The U.S. Department of Labor (DOL) on April 3 issued further guidance in the form of 20 new Questions and Answers to assist employers and employees in understanding and implementing the requirements established by the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The FFCRA’s paid leave provisions became effective on April 1, 2020 and will apply to leave taken from that date through December 31, 2020.
The DOL has issued several tranches of Questions and Answers since the March 18, 2020 passage of FFCRA, and the latest release covers Questions 60 – 79.
Additionally, on April 1, the agency issued a Temporary Rule implementing regulations to address, in greater detail, employer obligations and employee benefits under the legislation, but all parties must begin to navigate the new laws immediately.
Issues Affecting Benefits, Quarantines and Isolation Periods
Availability of Work
Different governmental and healthcare authorities have issued a variety of orders in response to the COVID-19 emergency. These have included federal, state and local quarantine and isolation orders as well as stay-at-home and shelter-in-place directives. Healthcare providers also have advised their patients to self-quarantine in response to concerns related to COVID-19 symptoms or exposures. The DOL now has made it clear that an
employee will not become eligible for paid sick leave unless the person’s employer has work that the employee could perform, in person or remotely, but for such an order or directive. In the absence of work or telework available for performance by the employee, an employee will not be eligible for emergency benefits under the FFCRA.
Need for Medical Diagnosis or Advice of Healthcare Provider
An employee’s eligibility for emergency benefits under the FFCRA based on a quarantine or self-isolation due to COVID-19 symptoms or concerns is expressly
conditioned upon the employee seeking a medical diagnosis or the advice of a healthcare provider. An employee who acts unilaterally to self-quarantine without seeking medical advice will not be eligible for emergency benefits under the Act for any such period of self-isolation.
Paid Sick Leave and Non-COVID-19 Illnesses
Emergency paid sick leave under the FFCRA applies only to illnesses related to COVID-19. Employees are not eligible for such benefits under the Act unless the condition giving rise to the need for sick leave is related to COVID-19
concerns. This emergency paid sick leave is in addition to and distinct from the employer’s existing sick leave policies, which remain in place and available to the employee.
Caring for Others, Paid Sick Leave, and Family and Medical Leave
An employee may take emergency paid sick leave under the FFCRA to care for certain others under defined conditions. An employee can become eligible for emergency paid sick leave to care for a family member or another with whom the employee has a relationship who, due to a quarantine or isolation order, is unable to care for him or herself and depends on the employee for care if providing the care prevents the employee from
working or teleworking.
Impact on Benefits When Another Person Is Available to Provide Childcare
Employees can become eligible for paid sick leave and family and medical leave benefits under the FFCRA when they are unable to work or telework because they must care for a child whose school or place of care has been closed or whose childcare provider has become unavailable due to concerns related to COVID-19 reasons. Eligibility for such benefits becomes an issue when a person other than the employee seeking benefits is available to provide the needed childcare. The DOL has advised
that, when an employee seeks such benefits, the employer should obtain from the employee (1) the name of the child being cared for, (2) the name of the school, place of care, or care provider that has closed or become unavailable, and (3) a statement from the employee that no other suitable person is available to care for the child. These emergency benefits generally will not be available if a co-parent, co-guardian, or usual childcare provider (including nanny, au pair, babysitter, grandparent, aunt, uncle, or neighbor) is available to provide the care the child needs. By conditioning these benefits in this manner, the DOL seeks to balance the need for emergency paid benefits with the actual availability of suitable childcare.
For Whom Is the Employee Providing Care?
To qualify for emergency paid sick leave under FFCRA for providing care for others, the employee must be providing care to someone who genuinely needs that care due to COVID-19 concerns. This includes immediate family members and persons who regularly reside in the employee’s home. This also can include a person with whom the employee has a relationship that creates an expectation that the employee would care for the person in a quarantine or self-isolation period, and that individual depends on the employee for care during such period. This also
can include a person who self-quarantines if a healthcare provider has advised the person to stay home or self-quarantine due to COVID-19 concerns, and provision of that care prevents the employee from working or teleworking.
Caring for Disabled Children 18 Years Old or Older
An employee can be eligible for emergency benefits under the FFCRA to care for a disabled child who is 18 years old or older who cannot care for him or herself due to the disability if the child’s school or place of care has closed or care provider is unavailable due to COVID-19 related reasons, and the
employee is unable to work or telework as a result. The employee will be entitled to two weeks of paid sick leave under the Act to care for a child who is 18 or older who needs care under these circumstances if the employee is unable to work or telework as a result.
Calfee will continue to update its analyses of the FFCRA as the DOL issues further Questions and Answers, regulations or other guidance.
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