After Slight Reprieve, DOL Releases Additional Batch of FFCRA Q&As

After giving employers a day off from addressing new information concerning the federal Families First Coronavirus Response Act (FFCRA), which took effect April 1 and requires private employers with 499 or fewer employees, and certain public employers, to provide covered employees emergency paid sick leave and emergency unpaid and paid family leave, the U.S. Department of Labor (DOL) released 20 new Q&As concerning employer obligations and employee rights under this new law (new questions and answers start at #60, with some minor revisions to earlier Q&As). The full set of Q&As can be found here.  Below we briefly address notable takeaways.

More on Shelter-in-Place Orders and No Self-Quarantines: In the new batch of Q&As, the DOL addresses several situations regarding how employers should evaluate FFCRA leave eligibility due to shelter-in-place orders. For example, in response to a question about how employees should know whether they can receive EPSL for a “Federal, State or local quarantine or isolation order,” the DOL explains:

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. 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… (emphasis added).

Also, in the DOL's temporary regulations issued on April 1, the Agency highlights the many ways FFCRA emergency paid sick leave (EPSL) differs from pre-FFCRA state and local mandatory paid sick leave laws. In a new Q&A, the DOL drills home this point by clarifying that employees cannot use FFCRA leave to self-quarantine: "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." The examples the DOL provides on shelter-in-place and quarantine situations cover quite a bit of ground, and are worth a careful read.

School & Care Place Closure Applies, Even if Online: The DOL emphasizes "closure" standards for schools and places of care focus on physical closures, so even if the entity provides "online" or "distance learning" instruction, a closure occurs and FFCRA leave might be available if all conditions for leave exist.

Watch Out for the Use of the Word "Individual" Under EPSL: Different reasons for EPSL use different definitions. While school/closure and childcare leave may be available only for a son or daughter as the law defines them, caring for someone else who may have COVID-19-related medical issues specified under EPSL is broader, and the law uses the term “individual.” A new Q&A reminds employers that, even if employees do not qualify to take leave to care for their own child, it does not mean leave might not be available to care for someone else's child. Generally, employees can take EPSL if, among other reasons, they need to care for an "individual" who is subject to a federal state, or local quarantine or isolation order related to COVID-19 or for whom a health care provider advises self-quarantine due to COVID-19 concerns. As a reminder, the DOL rules define an “individual” as 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 them in a quarantine situation.

"Substantially Similar Condition" Remains a Mystery: The DOL notes that the Department of Health and Human Services (HHS) has not yet issued guidance on what this last reason for EPSL may include, but, if HHS does not, the DOL will do so.

More Examples of Leave Being Unavailable Without "Work" to Perform: The DOL continues to provide examples of situations in which FFCRA leave is unavailable because employees have no work to perform. The latest examples involve seasonal workers during the off-season, and employees not working because they are not at work and receiving workers' compensation or temporary disability benefits.

The DOL also addresses scenarios in which employees return to work from a non-working period. For example, if an employee returns to light duty or after a voluntary absence, then experiences a qualifying event, the employee might get FFCRA leave if all conditions for leave exist.

Final Thoughts: The DOL also includes new Q&As regarding staffing company headcount/leave, paying employees with entirely irregular schedules, and more details about the DOL’s non-enforcement position it announced that applies through April 17, 2020.  Finally, the DOL continues to refine some of its earlier Q&As with further clarification and explanation, so employers should be sure to utilize the electronic version of those Q&As when looking for answers to questions in real time.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.