After giving employers a momentary break from the ever evolving release of information concerning the Families First Coronavirus Response Act (FFCRA), the Department of Labor (“DOL”) released 20 additional Questions & Answers concerning employer obligations and employee rights under the new Emergency Paid Sick Leave and paid FMLA leave law.

In this latest round of guidance, the DOL addresses shelter-in-place orders and their impact on the paid sick leave and FMLA leave provided by the FFCRA. The DOL explained various reasons for paid sick leave, as well as expounded upon and fine-tuned some of their earlier answers. The full set of Questions & Answers can be found in its entirety at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

The DOL has finally confirmed that shelter-in-place orders issued by any government authority that cause an employee to be unable to work (or telework) would qualify as a Federal, state, or local quarantine or isolation order for the purposes of the FFCRA. Provided, however, that in order for an employee to take paid sick leave as a result of a shelter-in-place order, the employer must have work available for the employee to perform but for the order. If the employer temporarily shuts down as a result of the order, or otherwise does not have work available for the employee, the employee would not be eligible to take paid sick leave for this reason.

The DOL has made it clear that an employee may not take paid sick leave under the FFCRA if they unilaterally decide to self-quarantine for an illness, without obtaining medical advice. An employee who elects to self-quarantine is only eligible for paid sick leave if a health care provider advises the employee to stay home, or they quarantine themselves because the health care provider believes that they may have COVID-19 or are particularly vulnerable to COVID-19. The key factor for eligibility here is the existence of medical advice.

Under the FFCRA, paid sick leave and expanded family medical leave is available to employees who are unable to work (or telework) when their child(ren)’s school or place of care is closed or child care provider is unavailable due to COVID-19 related reasons. The DOL has defined “place of care” as a physical location in which care is provided for the child, and clarified that this location does not have to be solely dedicated to such care. The DOL also defined “child care provider” as someone who cares for your child. This includes individuals paid to provide child care, such as nannies and/or babysitters, as well as individuals who provide child care at no cost and without a license on a regular basis such as grandparents, friends, relatives or neighbors.

One of the biggest outstanding questions regarding employee eligibility for purposes of emergency paid sick leave is with regard to the specific conditions that would be considered “substantially similar”, as required by the sixth category of eligibility. While that question has yet to be answered, the DOL addressed this issue in its latest guidance by stating that the Department of Health and Human Services (HHS) has yet to identify any “substantially similar condition” that would allow an employee to take paid sick leave. The DOL advised that in the event HHS fails to identify any such condition, it will issue guidance explaining when one may take paid sick leave on the basis of a “substantially similar condition”.

The DOL will not begin enforcement actions against any employer for violations of the act occurring within 30 days of enactment of the FFCRA (March 18-April 17), provided that the employer has made reasonable good faith efforts to comply with the Act. However, this limited stay of enforcement will be lifted after April 17, 2020 and the DOL will begin to fully enforce violations of the Act as appropriate and consistent with the law.

We will continue to keep you updated on additional information as it becomes available. However, I encourage all employers to visit the DOL’s website, as well as the link above, in order to access the guidance materials in their entirety. This will not only provide you with the specific Questions & Answers addressed in this article, but also those Questions & Answers that were previously published and subsequently revisited for fine tuning.

If you would like to learn more about the FFCRA or have questions about your obligations as an employer under this new law, please let us know. Our labor and employment law attorneys stand ready to help you through these unprecedented times.

Article by Christine Vizcaino