DEPARTMENT OF LABOR REGULATIONS BROADEN DEFINITION OF QUARANTINE OR ISOLATION ORDER UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

DEPARTMENT OF LABOR REGULATIONS BROADEN DEFINITION OF QUARANTINE OR ISOLATION ORDER UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

As a quick recap, the Emergency Paid Sick Leave Act (the “EPSLA”), included in the Families First Coronavirus Response Act (the “FFCRA”), states that an employer shall provide an employee with paid sick time if the employee is unable to work or telework because the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.  In a March 30, 2020, alert, our office stated that employers should proceed cautiously with respect to whether Governor Whitmer’s March 23, 2020 “stay at home” order constituted a quarantine or isolation order that would entitle employees to paid sick leave under the EPSLA.  Our reason for urging caution stemmed in large part from guidance issued by the Department of Labor (the “DOL”) indicating that employees were not entitled to paid sick leave if their employer closed their worksite pursuant to a federal, state, or local directive. 

To the surprise of most, and in a departure from previous law, the DOL has now published regulations on the EPSLA stating that quarantine or isolation orders include orders that advise “some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their mobility.”  At first glance, the DOL’s decision to include a “stay at home” order within the definition of a quarantine or isolation order would seem to indicate that Governor’s Whitmer’s order broadly entitles employees to paid sick leave under the EPSLA.  The DOL’s regulations, however, clarify that this is not actually the case.   

According to the regulations, Governor Whitmer’s “stay at home” order would entitle an employee to paid sick leave under the EPSLA only if it directly prevented the employee from working or teleworking.  As the regulations state, the critical question is “whether the employee would be able to work or telework ‘but for’ being required to comply with a [stay at home] order.” 

In the regulations, the DOL applied its “but for” test to several practical situations.  For instance, the regulations provide that where an employer decides to cut back or completely shut down its operations due to the pandemic’s negative impact on business, affected employees are not eligible for paid sick leave under the EPSLA.  A similar result occurs where an employer furloughs several employees due to lack of work, even if the lack of work is itself caused by a “stay at home” order.  This is because the employees in both of the foregoing scenarios are removed from the workplace due to the employer’s directive based on actual or perceived operational concerns, and not due to an order directing the employees to stay home.  Similarly, EPSLA sick leave benefits are not available to employees where the employer’s business is required to close because in such a scenario the reason employees cannot work is because of the order’s effect on the business itself.  In sum, where an employee is unable to work or telework because his or her employer laid the employee off due to lack or work, or closed down operations, the employee will not be eligible for paid sick leave based on Governor’s Whitmer’s “stay at home” order. 

On the other hand, if an employer has available work, but prohibits an employee from working in order to specifically comply with the “stay at home” order, then the employee would be entitled to paid sick leave under the EPSLA.  As an example, Governor Whitmer’s “stay at home” order allows critical infrastructure businesses to continue in-person operations that are necessary to sustain or protect life.  A critical infrastructure business, however, must still limit in-person operations by essentially allowing only employees designated by the employer as “critical infrastructure workers” to report for in-person work.  Accordingly, an employee of a critical infrastructure business who is unable to work due to compliance with the “stay at home” order (i.e., being designated as a non-critical infrastructure worker), despite work otherwise being available, would be entitled to EPSLA paid sick leave, as the employee would be working “but for” the “stay at home” order’s mandate. 

The stay at home order took effect on March 24, 2020.  That same day, many employers either shut down in-person operations or continued in-person operations after designating which employees were or were not critical infrastructure workers.  Thus, some employees were placed on an involuntary unpaid leave which, as explained above, would have been covered under the EPLSA had the law been in effect at that time.  Does this mean that those employees who were involuntarily placed on unpaid leave status prior to April 1, 2020, and who remain on involuntary leave, have the present ability to use paid time under the EPLSA (or the expanded FMLA)? 

The answer is, no.  The DOL clarified this specific issue over the weekend in yet another round of interpretive Q&A guidance.  The relevant question and answer provides:

May I take paid sick leave or expanded family and medical leave under the FFCRA if I am [already] 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 Masud Labor Law Group will continue to follow the ever-evolving developments from the DOL and provide updates.  Of course, if you have any questions regarding your obligations under the FFCRA, do not hesitate to contact us. 

No Comments

Post A Comment