DOL Provides Additional “Questions and Answers” on FFCRA
The United States Department of Labor (DOL) has expanded its Questions and Answers document providing additional information interpreting the Families First Coronavirus Response Act (FFCRA). The Q&A document reflects information provides by the DOL in its “Temporary Rule” issued last week. Through this Q&A, the DOL provides additional guidance to employers in how to administer the FFCRA. See MEA’s prior alert regarding the Final Rule.
Government Stay-at-Home and Shutdown Orders
The Q&A document further clarifies the information provided by the DOL in its Temporary Rule last week. 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 causes an employee to be unable to work or telework even though the employer has work that the employee could perform but for the order. An employee may not take paid sick leave for this qualifying reason if the employer does not have work available as a result of a shelter-in-place or a stay-at-home order.
In the example given by the DOL in its Temporary Rule, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, an employee subject to a quarantine or isolation order is not eligible for emergency paid sick leave because their inability to work is not due to the need to comply with a stay-at-home order, but rather due to the closure of the place of employment. Importantly, the DOL also states that this is true even if the closure of the business is directly related to a government order forcing the coffee shop to close. Therefore, the employee in that situation would not be eligible for emergency paid sick leave under this qualifying reason. As the DOL explains, the key question in this analysis is “whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order.”
Self-Quarantine as a Basis for Leave
If an employee becomes ill with COVID-19 symptoms, the employee may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health care provider otherwise advises the employee to self-quarantine. If the employee tests positive for the virus associated with COVID-19 or is advised by a health care provider to self-quarantine, the employee may continue to take paid sick leave. The employee may not take paid sick leave under the FFCRA if the employee unilaterally decides to self-quarantine for an illness without medical advice, even if the employee has COVID-19 symptoms. FFCRA does not prevent an employee in this situation from telecommuting, if he or she is otherwise able to do so.
Caring for Children Over 18 Years Old
Many employers have asked whether FFCRA can be taken to care for a child over the age of 18 if the child is not able to care for him or herself. It appears that the answer is yes. According to the DOL, if a child is 18 years of age or older with a disability and cannot care for him or herself due to that disability, an employee may take paid sick leave and expanded family and medical leave under FFCRA to care for that child if his or her school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 related reasons, and the employee is unable to work or telework as a result.
Unavailability of Other Childcare
An employee may take paid sick leave or expanded family and medical leave to care for a child only when the employee needs to, and actually is, caring for the child and if the employee is unable to work or telework as a result of providing care. Generally, an employee does not need to take such leave if a co-parent, co-guardian, or the child’s usual childcare provider is available to provide the care a child needs.
Children Attending Online School
If the physical location where a 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,” the child is still expected or required to complete assignments.
Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.