Responses to Frequently Asked Questions as of April 23, 2020

  1. Effective Date of the FFCRA

The paid leave provisions under the FFCRA are effective April 1, 2020, and apply to leave taken between April 1, 2020 and December 31, 2020.

  1. Covered Employer

Generally, employers with fewer than 500 employees are covered employers under the Act and must provide paid sick leave and expanded family and medical leave.  Certain employers with fewer than 50 employees may be exempt from the Act’s requirements to provide certain paid sick leave and expanded family and medical leave.

  1. Calculation of Size of Employer

In making the determination as to whether a business is under the 500-employee threshold, employers should include employees on leave, temporary employees who are jointly employed employees (regardless of whether they are maintained only on one of the employer’s payroll), and day laborers supplied by a temporary placement agency (if there is a continuing employment relationship).

Workers who are independent contractors under the FLSA, rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must be counted towards the 500-employee threshold.  However, where a corporation has an ownership interest in another corporation, the two corporations are separate employers, unless they are joint employers of certain employees under the FLSA.  If two entities are joint employers, all of their common employees must be counted in determining coverage under the FFCRA.

In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA.  If two entities are an integrated employer under the FMLA, then employees of all entities making up the integral employer will be counted in determining coverage under the FFCRA. Under the integrated test, the following factors are considered:

  • Interrelation of operations;
  • Common management;
  • Centralized control of labor relations and personnel; and
  • Common ownership and financial control

The language about counting employees over calendar workweeks is only in the FMLA’s definition of employer and does not apply to the FFCRA for purposes of expanded family and medical leave and sick leave.  Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees.

  1. Private Sector Employers

Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.

  1. Small Businesses Exemption

Employers with fewer than 50 employees may be exempt from providing paid sick leave and expanded family and medical leave due to school closure or child care unavailability due to COVID-19 only, when doing so would jeopardize the viability of their business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

  • The provision of paid sick leave or expanded family and medical leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employees requesting paid sick leave or expanded family and medical leave would entail 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, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
  1. Eligible Employees

Both the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions use the definition of employee provided by the FLSA.  Thus, assuming the employer is a covered employer, all U.S. employees who meet the definition of employee are eligible, including full-time and part-time employees, and “joint employees” working on your site temporarily and/or through a temp agency.

Exceptions are health care providers or emergency responders who may be exempt, as well as employees of certain small businesses.

To qualify for expanded family and medical leave, employees must have been employed for 30 calendar days.  Employees are eligible for paid sick leave regardless of length of employment.

  1. Calculation of Hours Worked by Part-Time Employees

Part-time employees are entitled to leave for the average number of hours worked in a two-week period. This calculation is based on the number of hours the employee is normally scheduled to work.

If the normal hours are unknown or vary, a six-month average may be used. The part-time employee may take paid sick leave for this number of hours per day for the two-week period, and then expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If the employee has not been employed for at least six months, the number of hours that the employee agreed to work upon hiring may be used.  If no such agreement, the appropriate number of hours may be calculated based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

  1. Overtime Hours, Overtime Pay

When calculating pay due to employees for expanded family and medical leave under the EFMLEA, if the employee would have normally been scheduled to work more than 40 hours in a week, overtime hours must be included, subject to the daily and aggregate cap.  However, premium pay is not required for hours worked over 40 per week.

When calculating pay due to employees for paid sick leave under the EPSLA, the Act only requires payment for up to 80 hours over a two-week period.  So if an employee is scheduled to work 50 hours per week, that employee may take 50 hours of paid sick leave in the first week, and 30 hours of paid sick leave in the second week, for a total of 80 hours in two weeks, subject to the daily and aggregate cap.  Again, premium pay is not required for hours scheduled over 40 per week.

  1. Rate of Pay

The rate of pay for an employee taking paid sick leave or expanded family and medical leave under the FFCRA depends on the employee’s normal schedule and the reason for taking leave.

Employees who are taking paid sick leave because they are unable to work because they (1) are subject to a federal, state or local order of quarantine or isolation related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, will receive:

  • the greater of their regular hourly rate of pay, or the applicable minimum wage (federal, state or local)
  • up to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

Employees who are taking paid sick leave because they are unable to work because they are (1) caring for an individual who is subject to a federal, state or local order of quarantine or isolation related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for a child whose school or place of care is closed due to COVID-19; or (3) experiencing any other substantially-similar conditions that may arise, as specified by the Secretary of Health and Human Services, will receive:

  • the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
  • up to a maximum of $200 per day, or $2,000 total over the entire paid sick leave period.
  • Employees taking expanded family and medical leave:
  • for the first 10 days, they may take paid sick leave, or substitute any accrued vacation leave, personal leave or medical or sick leave under their employer’s policy
  • for the following 10 weeks, they will be paid for leave at the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
  • up to a maximum of $200 per day, or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when the employee is on leave to care for a child whose school or place of care is closed due to COVID-19.
  1. Calculation of Regular Rate of Pay

For purposes of FFCRA, the regular rate of pay used to calculate paid leave is the average of the employee’s regular rate (as determined by section 7(e) of the FLSA) over a period of up to six months prior to the date on which leave is taken.

If the employee has not worked for the employer for six months, the regular rate is the average of the regular rate of pay for each week worked for the employer.

If paid with commissions, tips or piece rates, they should be incorporated into the calculation of regular rate.

The regular rate can also be computed for each employee by adding all compensation that is part of the regular rate over the applicable period above and dividing it by the sum of all hours actually worked in the same period.

Once an employer identifies the six-month period to calculate an employee’s regular rate based on the first day the employee takes paid sick leave or expanded family and medical leave, that six-month period may be used to calculate all subsequent paid sick leave and expanded family and medical leave the employee takes under the FFCRA.

  1. Computation of Hours of Paid Sick Leave and Expanded Family and Medical Leave

Paid Sick Leave Hours

Generally, employers must provide employees with paid sick leave equal to the number of hours that employee is scheduled to work, on average, over a two-week period, up to a maximum of 80 hours.  If the employee works an irregular schedule, the employer must estimate the number of hours based on the average number of hours the employee was scheduled to work per calendar day over the six-month period ending on the first day of sick leave. The average must include all scheduled hours, including hours for which the employee took leave.

Expanded Family and Medical Leave Hours

Generally, employers must provide employees with each day of expanded family and medical leave taken based on the number of hours the employee was normally scheduled to work that day.  If an employee works an irregular schedule, the employer must determine the employee’s average workday hours, including any leave hours.  The average must be based on the number of hours the employee was scheduled to work per workday divided by the number of workdays over the six-month period ending on the first day of the employee’s paid leave.  This average must include all scheduled hours, including hours for which the employee took leave.

It is acceptable for employers to round to the nearest tenth, quarter or half hour when determining an employee’s hours worked. But, in an employer chooses to round, it must use a consistent rounding principle. Employers may round to the nearest time increment that is customarily used to track employee’s hours worked.

  1. No Stacking of Paid Sick Leaves

Employees may not use 80 hours of paid sick leave for one qualifying reason, and then another amount for another qualifying reason under the EPSLA.  Employees may only take up to two weeks of paid sick leave, capped at 80 hours total for full-time employees, or the number of hours worked over a two-week period for part-time employees, for any combination of qualifying reasons.

  1. Stacking of Paid Sick Leave and Expanded Family and Medical Leave

Employees may however take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed for COVID-19 reasons, for a total of twelve (12) weeks of paid leave.

The EPSLA provides for an initial two weeks of paid leave, which covers the first ten workdays of expanded family and medical leave (which is otherwise unpaid unless accrued vacation, personal, medical or sick leave under the employer’s policy is used).

 

Thereafter, the employee can receive another ten weeks of leave under the expanded family and medical leave at a rate of 2/3 the regular rate of pay for the hours the employee would have been scheduled to work in those ten weeks.  However, the additional ten weeks of leave can only be used care for a child whose school or place of care is closed for COVID-19 reasons.

  1. Paid Sick Leave Taken Prior to the FFCRA

If an employee was provided paid sick leave for a qualifying reason prior to the effective date of FFCRA, the employee is entitled to the full amount of paid sick leave under the EPSLA beginning on April 1, 2020.

  1. All Leave Under the FMLA Leave Is Not Paid

Only family and medical leave under the EFMLEA is paid, after the first 10 days of leave.  The first 10 days of EFMLEA leave is unpaid.

  1. Is Paid Leave Under the FFCRA Retroactive

No, the paid sick leave and expanded family and medical leave requirements under the FFCRA are not retroactive.

  1. Calculation of 30-Day Eligibility Period for Employees

Employees are considered to have been employed by their employer for at least 30 calendar days if the employer had the employee on its payroll for the 30 calendar days immediately prior to the day leave would begin.

For an employee who has been working as a temporary employee, and is subsequently hired on a full-time basis, the days previously worked as a temporary employee may be counted towards the 30-day eligibility period.

  1. Records Employers Must Retain for Paid Leave Under the FFCRA

Regardless of whether paid leave is granted or denied, employers must keep the following documents:

  • name of employee requesting leave;
  • date(s) for which leave is requested;
  • reason for leave; and
  • statement from employee that he/she is unable to work because of the reason.

If an employee requests leave because of a quarantine or isolation order or on advice of health care provider, employers must additionally document:

  • name of the government entity that issued the order; or
  • name of the health care provider who gave advice.

If an employee requests leave to care for a child whose school or place of care is closed, or the child are provider is unavailable, the employer must additionally document:

  • name of child being care for;
  • name of school, place of care, or child provider that has closed or become unavailable; and
  • statement from employee that no other suitable person is available to care for the child.

Private sector employers are eligible for reimbursement of the costs of leave required by the FFCRA through refundable tax credits.  Employers intending to claim tax credits should consult the Internal Revenue Service for applicable forms and instructions.

  1. Documents Employees Must Provide for Paid Leave Under the FFCRA

Employees requesting paid sick leave or expanded family and medical leave must provide their employer with the information above.  In addition, if leave is for the employee’s own serious health condition, all existing certification requirements under the FMLA remain in effect, and the employee must continue to provide medical certifications under the FMLA.

  1. Teleworking

Employers may permit employees to telework.  Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

  1. Inability to Work or Telework

Employees are unable to work or telework if their employer has work for them, and one of the qualifying FFCRA reasons prevents the employee from working.  Those employees would be entitled to paid sick leave or expanded family and medical leave.

  1. Intermittent Paid Sick Leave or Expanded Family and Medical Leave

While Teleworking

Allowed if an employee was teleworking, but is no longer able to work normal schedule because due to one of the qualifying reasons in the EPSLA. In that situation, the employee and employer may agree that the employee may take paid sick leave intermittently while teleworking.

Similarly, if an employees are prevented from teleworking their normal schedule of hours because they need to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee and employer may agree that the employee can take expanded family medical leave intermittently while teleworking.

Intermittent leave may be taken in any increment, provided that the employee and employer agree.

While Working at Worksite

For employees working at the workplace, paid sick or family leave may only be taken intermittently if it is to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons, and only if the employee and employer agree that the employee can take intermittent leave.

Intermittent leave may not be taken for the following reasons:

  • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • You are caring for an individual who either is subject to a 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; or
  • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless an employee is teleworking, once the employee begins taking paid sick leave for one or more of these qualifying reasons, the employee must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave.

However, if the employee no longer has a qualifying reason for taking paid sick leave before the paid sick leave is exhausted, employees may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.  For employees working at the workplace, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments.

  1. No Entitlement to Paid Sick Leave or Expanded Family and Medical Leave If Employer Closes Before April 1, 2020

Employers may permit employees to telework.  Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

  1. No Entitlement to Paid Sick Leave or Expanded Family and Medical Leave After Worksite Closes

Employees are not entitled to paid sick leave or expanded family and medical leave after the employer closes, even if the leave was requested prior to closure.  However, employees may be eligible for unemployment insurance benefits.

If an employer closes while an employee is on paid sick or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave used before the employer closed.  As of the date an employer closes its worksite, it is no longer required to provide paid sick leave or expanded family and medical leave.

  1. Furloughed Employees Not Entitled to Paid Sick Leave or Expanded Family and Medical Leave

Employees furloughed due to lack of work or business are not entitled to take paid sick leave or expanded family and medical leave. However, they may be eligible for unemployment insurance benefits.

  1. Paid Sick Leave or Expanded Family and Medical Leave Cannot Be Used for Reduced Hours

If an employee’s hours are reduced for lack of work, the employee may not use paid sick leave or expanded family and medical leave for hours that the employee is no longer scheduled to work.

  1. Health Coverage During and After Paid Sick Leave and Expanded Family and Medical Leave

Employees are entitled to continue group health coverage during paid sick leave and expanded family and medical leave on the same terms as if they continued to work. The employee must generally continue to make normal contributions to the cost of health coverage.

For employees who do not return to work at the end of expanded family and medical leave, they may or may not be eligible to keep their health coverage.  If they are no longer eligible, they may be able to continue coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).

  1. Concurrent Use of Preexisting Leave and FFCRA Paid Sick Leave and Expanded Family and Medical Leave

During the first two weeks of unpaid expanded family and medical leave, employees may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless agreed to by the employer to supplement pay up to normal earnings.

After the first two weeks (10 workdays) of expanded family and medical leave under the EFMLEA, employees may elect or be required to take their remaining expanded family and medical leave at the same time as any existing paid leave under their employer’s policies.

  1. Paid Sick Leave Under the EPSLA and Employer Policies

Paid sick leave under the EPSLA is in addition to employees’ other leave entitlements.  Employers may not require employees to use accrued paid vacation, personal, medical or sick leave before the paid sick leave.  Employers also may not require employees to use such existing leave concurrently with paid sick leave under the EPSLA.

However, if the employer agrees, an employee may use existing leave to supplement amounts received form paid sick leave, up to the employee’s normal earnings.  Note that the employer is not entitled to a tax credit for any paid sick leave that is not required to be paid or that exceeds the limits set forth under the EPSLA.

  1. Expanded Family and Medical Leave Under the EFMLEA and Employer Policies

After the first two weeks (10 days) of expanded family and medical leave under the EFMLEA, employers may require that employees take concurrently for the same hours expanded family and medical leave and existing leave under the employer’s policies.  Employers that do so must pay their employees the full amount to which they are entitled under the existing paid leave policy for the period of leave taken.  If the employee exhausts all preexisting paid leave, the employer would need to pay the employee at least 2/3 of his/her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 aggregate.

  1. No Tax Credit in Excess of FFCRA Requirements

Employers may pay their employees in excess of FFCRA requirements, but cannot claim and will not receive tax credit for those excess amounts.

  1. Contributions to a Multiemployer Fund, Plan or Program

Employers that are part of a multiemployer collective bargaining agreement may satisfy their obligations under the EFMLEA by making contributions to a multiemployer fund, plan or other program in accordance with existing collective bargaining obligations.  The contributions must be based on the amount of paid family and medical leave to which each of the employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement (CBA).  Similarly, employers that are part of a multiemployer CBA may satisfy their obligations under the EPSLA by making contributions to a multiemployer fund, plan or other program in accordance with existing collective bargaining obligations.  The contributions must be based on the hours of paid sick leave to which each of the

Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, employers may choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and CBA.

  1. Definition of Son or Daughter

Under the FFCRA, a “son or daughter” is an employee’s own child, which includes biological, adopted, or foster child, stepchild, a legal ward, or a child for whom the employee is standing in loco parentis- someone with day-to-day responsibilities to care for or financially support a child.

However, in light of Congressional direction to interpret definitions consistently, WHD clarifies that under the FFCRA, a “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older) who:

  • has a mental or physical disability, and
  • is incapable of self-care because of that disability.
  1. Enforcement for Refusal to Provide Paid Sick Leave and Expanded Family and Medical Leave

Employees who believe they are covered, but whose employer refuses to provide paid sick leave or expanded family and medical leave, are encouraged to try to resolve concerns with their employer.  Employees may also call WHD which is the agency responsible for administering and enforcing these provisions.

In most cases, employees can file a lawsuit against the employer directly without contacting WHD.  Some state and local employees may not be able to pursue direct lawsuits because their employers are immune from such suits.

  1. Right to Return to Work After Taking Paid Sick Leave or Expanded Family and Medical Leave

The Act requires employers to provide the same or equivalent job to an employee who returns to work following leave. However, employees are not protected from employment actions for legitimate business reasons, such as layoffs, that would have effected the employees regardless of whether leave was taken.

Employers may also refuse to return an employee to the same position if the employee is a highly compensated “key” employee, as defined under the FMLA, or if the employer has fewer than 25 employees and an employee takes leave to care for a child whose place of care is close or unavailable, and all four of the following hardship conditions exist:

  • the position no longer exists due to economic or operating conditions due to COVID-19 related reasons;
  • the employer made reasonable efforts to restore the employee to the same or equivalent position;
  • the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
  • the employer continues to make reasonable efforts to contact the employee for one year after leave concludes or 12 weeks after leave began, whichever is earlier.
  1. Relation of FMLA Leave and the FFCRA

Sick Leave. Employees are entitled to the full amount of paid sick leave under the Act, regardless of how much leave they have taken under the FMLA.

Family and Medical Leave.  If an employer was covered by the FMLA prior to April 1, 2020, eligibility for expanded family and medical leave under the Act depends on how much leave has already been taken during the 12-month period under the FMLA.

Employees may take a total of 12 workweeks of leave for reasons under FMLA or expanded family and medical leave during a 12-month period.  If an employee has taken some, but not all, 12 workweeks of leave under the FMLA during the current 12-month period, the employee may only take the remaining portion of leave available under the Act for expanded family and medical leave.  If any employee has already taken 12 workweeks of leave under the FMLA for reasons unrelated to COVID-19, the employee may not take additional expanded family and medical leave.

Note that expanded family and medical leave is only available until December 31, 2020.  After that, employees may only take FMLA leave.

  1. Relation of Other Paid Sick Leave and the Emergency Paid Sick Leave Act

Paid sick leave under the EPSLA is in addition to other leave provided under Federal, State, or local law, an applicable collective bargaining agreement or an employer’s existing company policy.

  1. Full-Time and Part-Time Employees

Paid Sick Leave.  For purposes of the EPSLA, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week.  A part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week.

Expanded Family and Medical Leave.  In contrast, the EFMLEA does not distinguish between full-time and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

  1. Definition of “Health Care Provider” For Purposes of Determining Individuals Whose Advice Can Be Relied on As a Qualifying Reason for Paid Sick Leave

For purposes of determining eligibility for paid sick leave, the term “health care provider,” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

  1. Definition of “Health Care Provider” For Determining Who Can Be Excluded by Employers From Paid Sick Leave and/or Expanded Family and Medical Leave

For the purposes of an exemption from paid sick leave or expanded family and medical leave by an employer under the FFCRA, a health care provider is:

  • any individual employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions;
  • any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility;
  • any individual employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; or
  • any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

However, the Department encourages employers to be “judicious” when using this definition to exempt health care providers from the provisions of the FFCRA in order to minimize the spread of the virus.

  1. Definition of Emergency Responder for Determining Who Can Be Excluded By Employers From Paid Sick Leave and/or Expanded Family and Medical Leave

For the purposes of an exemption from paid sick leave or expanded family and medical leave by an employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to:

  • military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel;
  • persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility; and
  • any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
  • However, the Department encourages employers to be “judicious” when using this definition to exempt emergency responders from the provisions of the FFCRA in order to minimize the spread of the virus.
  1. Federal, State, of Local Quarantine or Isolation Orders

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 and stay-at-home orders issued by a government authority that cause an employee to be unable to work or telework even though the employer has work that could be performed.  However, if the employer does not have work as a result of a shelter-in-place order, an employee is not entitled to paid sick leave.

  1. Self-Quarantine

An employee is eligible for paid sick leave if a health care provider directs or advises thee 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 the quarantine prevents the employee from working or teleworking. However, if the employee is able to telework during the quarantine, paid sick leave is not available.

If an employee becomes ill with COVID-19 symptoms and unilaterally decides to self-quarantine without medical advice, the employee is not entitled to take paid sick leave under the FFCRA.

  1. Caring for Someone Subject to an Order of Quarantine or Isolation

An employee may take paid sick leave to care for an individual who is subject to an order of quarantine or isolation and unable to care for himself/herself, and depends on the employee for care.  The employee must be prevented from working or teleworking due to providing such care.

The individual must be an immediate family member or someone who regularly resides in the employee’s household, or someone with whom the employee has a relationship such as to create an expectation that the employee would care for that person in quarantine or self-quarantine.

  1. Caring for Someone Who Is Self-Quarantining

An employee may take paid sick leave to care for an individual who is self-quarantining, if a heath care provider has advised that the individual stay at home or otherwise self-quarantine because the individual may have COVID-19 or is particularly vulnerable to COVID-19, and the provision of care to that individual prevents the employee from working or teleworking.

  1. Care for Child Whose School or Place of Care Is Closed or Unavailable Due to COVID-19

An employee may only take paid sick leave or expanded family and medical leave to care for his/her child when the employee needs to, and actually is, caring for the child and thus unable to work or telework.  Generally, an employee does not need to take such leave if a co-parent, co-guardian, or usual child care provider is available to provide the care.

A school or place of care is closed for purposes of the FFCRA if the physical location is closed but instruction is being provided online or through other forms of distance learning.

An employee may take paid sick leave to care for a child that is not the employee’s child only if it qualifies as care for someone else who is under an order of quarantine or isolation or self-quarantining under advice by a health care provider.

  1. Employees Receiving Workers’ Compensation and Disability Benefits

Employees generally may not take paid sick leave or expanded family and medical leave if they are receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan, unless they were able to return to light duty before taking leave.  If an employee receives workers’ compensation or temporary disability benefits because the employee is unable to work, the employee may not take paid sick leave or expanded family and medical leave.

  1. Employees on Employer-Approved Leave of Absence

Employees on a voluntary leave of absence may end their leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents the employee from working or teleworking.

However, employees on a mandatory leave of absence may not take paid sick leave or expanded family and medical leave, because it is the mandatory leave that prevents them from working or teleworking, not the FFCRA qualifying reason.

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP