The Department of Labor has issued further clarification on the Families First Coronavirus Response Act (FFCRA for short – see our previous blogs with explanations about the FFCRA and a breakdown of the DOL’s initial clarifications). We’ve boiled down the additional questions and answers here, both to help employees know their rights under these new laws and to help them know when to call one of our attorneys for help.
What businesses do not have to provide Emergency Paid Sick Leave or Emergency FMLA under the FFCRA?
An employer with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if any one of the following are true:
- The provision of paid sick leave or expanded FMLA would cause the business to stop operating even at minimal capacity;
- The absence of the requesting employee would mean a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, qualified, and who will be available at the time and place needed, to perform the labor or services provided by the requesting employee, and these labor or services are needed for the small business to continue operating.
How do I know if I can receive paid sick leave for a Federal, State, or local quarantine or isolation order related to COVID-19?
For purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that cause you to be unable to work (or to telework) even though your employer has work that you could perform but for the order. NOTE: You may not take paid sick leave for this qualifying reason if your employer does not have work for you as a result of a shelter-in-place or a stay-at-home order, but you may be eligible for unemployment benefits.
When am I eligible for paid sick leave to self-quarantine?
You are eligible for paid sick leave if a health care provider directs or advises you to stay home or otherwise quarantine yourself because the health care provider believes that you may have COVID-19 or are particularly vulnerable to COVID-19, and quarantining yourself based upon that advice prevents you from working (or teleworking).
I am an employee. I become ill with COVID-19 symptoms, decide to quarantine myself for two weeks, and then return to work. I do not seek a medical diagnosis or the advice of a health care provider. Can I get paid for those two weeks under the FFCRA?
Generally no. If you become ill with COVID-19 symptoms, you may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine. If you test positive for the virus associated with COVID-19 or are advised by a health care provider to self-quarantine, you may continue to take paid sick leave. You may not take paid sick leave under the FFCRA if you unilaterally decide to self-quarantine for an illness without medical advice, even if you have COVID-19 symptoms. Note that you may not take paid sick leave under the FFCRA if you become ill with an illness not related to COVID-19. Depending on your employer’s expectations and your condition, however, you may be able to telework during your period of quarantine.
When am I eligible for paid sick leave to care for someone who is subject to a quarantine or isolation order?
You may take paid sick leave 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 you for care and if providing care prevents you from working and from teleworking.
Furthermore, you may only take paid sick leave to care for an individual who genuinely needs your care. Such an individual includes an immediate family member or someone who regularly resides in your home or if your relationship creates an expectation that you would care for the person in a quarantine or self-quarantine situation, and that individual depends on you for care during the quarantine or self-quarantine.
Note: You may not take paid sick leave to care for someone with whom you have no relationship. Nor can you take paid sick leave to care for someone who does not expect or depend on your care during his or her quarantine or self-quarantine.
When am I eligible for paid sick leave to care for someone who is self-quarantining?
You may take paid sick leave 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 he or she may have COVID-19 or is particularly vulnerable to COVID-19 and provision of care to that individual prevents you from working (or teleworking).
May I take paid sick leave or expanded family and medical leave to care for my child who is 18 years old or older?
It depends. Under the FFCRA, paid sick leave and expanded family and medical leave include leave to care for one (or more) of your children when his or her school or place of care is closed or child care provider is unavailable, due to COVID-19 related reasons. In this case, leave may only be taken to care for a child under the age of 18 or a disabled child over 18 who cannot care for him or herself because of the disability.
If you have a need to care for your child over 18 who needs care because they are subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or because they have been advised by a health care provider to self-quarantine due to concerns related to COVID-19, you may take paid sick leave if you are unable to work or telework as a result of providing care. But in no event may your total paid sick leave in this case exceed two weeks.
What is a “place of care”?
A “place of care” is a physical location in which care is provided for your 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.
Who is my “child care provider”?
A “child care provider” is someone who cares for your 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.
Can more than one guardian take paid sick leave or expanded FMLA simultaneously to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?
You may take paid sick leave or expanded family and medical leave to care for your child only when you need to, and actually are, caring for your child if you are unable to work or telework as a result of providing care. Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs.
My child’s 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 your child received instruction or care is now closed, the school or place of care is “closed” for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as “distance learning,” your child is still expected or required to complete assignments.
May I take paid sick leave to care for a child other than my child?
It depends. The paid sick leave that is provided under the FFCRA to care for one (or more) of your children when their place of care is closed (or child care provider is unavailable), due to COVID-19 related reasons, may only be taken to care for your own son or daughter (this includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are responsible to care for or financially support).
However, paid sick leave is also available to care for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. If you have a need to care for a child who meets these criteria, you may take paid sick leave if you are unable to work or telework as a result of providing care. But in no event may your total paid sick leave exceed two weeks.
May I take expanded FMLA to care for a child other than my child?
No. Expanded family and medical leave is only available to care for your own son or daughter (this includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are responsible to care for or financially support).
When am I eligible for 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 (HHS) 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 Department of Labor will issue guidance explaining when you may take paid sick leave on the basis of a “substantially similar condition.”
May I take paid sick leave or expanded FMLA leave if I am receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan?
In general, no, but if you were able to return to light duty and a qualifying reason prevents you from working, you may take paid sick leave or expanded family and medical leave, as the situation warrants.
May I take paid sick leave or expanded FMLA under the FFCRA if I am on an employer-approved leave of absence?
It depends on whether your leave of absence is voluntary or mandatory. If your leave of absence is voluntary, you may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents you from being able to work (or telework). However, you may not take paid sick leave or expanded family and medical leave under the FFCRA if your leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework). Note: for a mandatory leave of absence, you may be eligible for unemployment insurance benefits.
Will DOL begin enforcing FFCRA immediately?
Though the Department of Labor will generally not bring enforcement actions against any public or private employer until April 17, 2020, that’s only if the employer has made reasonable, good faith efforts to comply. If your employer violates the FFCRA at any time, you should call Barrett & Farahany at 866-951-0903 to discuss your situation with an attorney.
Does the non-enforcement position mean businesses do not need to comply with the FFCRA until April 17, 2020?
No, the FFCRA’s paid leave provisions are effective April 1, 2020. Private sector and public employers must comply with the provisions on the effective date even though the Department of Labor is staying their enforcement until April 17, 2020. Additionally, because the Act is in effect April 1, the Department of Labor can retroactively enforce violations back to April 1, 2020 if they choose.
Note: we are seeing quite a few cases where the employer was aware the FFCRA was about to be enacted, anticipated the employee’s need for the benefits FFCRA provides, and terminated the employee prior to April 1 to prevent the employee from accessing the benefits after April 1. Under normal FMLA, this is known as “anticipatory termination,” and case law has established this as illegal treatment. We believe that anticipatory terminations related to FFCRA may also be treated as illegal eventually, and we would like to speak with you if you have evidence your employer knew they might have to provide benefits under FFCRA after April 1 and terminated you prior to April 1 expressly to prevent you from accessing the benefits after April 1.
