Practical and Legal Guidance Resources In the Wake Of COVID-19

In our presentation on 4/1, it was noted that although the DOL had not addressed Shelter-in-Place and Business Closure Orders, it appeared that benefits would be denied under such circumstances because Congress removed language from the FFCRA that said "Emergency paid leave benefits are available when "[t]he individual is under quarantine (including self-imposed quarantine), at the instruction of a health care provider, employer, or a local, State, or Federal official, in order to prevent the spread of COVID-19."

Since then, on 4/6 , the Wage and Hour Division of the DOL enacted temporary regulations(attached) to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), 29 CFR Part 826, and specifically answered the question:

Q:  When is an employee eligible for paid sick leave under the EPSLA because he or she is “subject to a federal, state, or local COVID-19 quarantine or isolation order”? (29 C.F.R. §§ 826.10, 826.20(a)(2))

A:  The Department of Labor’s  regulations specify that a “quarantine or isolation order” includes containment, shelter-in-place, and stay-at-home orders, and orders that designate categories of citizens to shelter in place, stay at home, isolate, or quarantine, where those orders cause employees to be unable to work. The regulations clarify that an employee is only entitled to take leave under the EPSLA for this qualifying reason if, but for being subject to the order, the employee would be able to perform work that is otherwise allowed or permitted by the employer. If an employer does not have work for an employee as a result of a quarantine or isolation order (or other circumstance), the employee is not entitled to take leave for this qualifying event.

It has now been clarified that such an order can be the basis for EPSL if: 1) the employee is unable to telework; and 2) there is work for the employee to do but cannot because he or she is precluded from doing it because of the order. 

Further guidance from the DOL:

An employee must be unable to work (or telework) due to the quarantine or isolation order to qualify for leave.  The regulations further explain that someone  who is able to telework for their job while under a quarantine or isolation order may not take paid sick leave.  “For example, if a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstances and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.”

Keep in mind that these EPSL benefits are only for 2 weeks/80 hours capped at $511 per day or $5,110 in total.  Your employee can only use EFMLEA leave to care for his or her son or daughter whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.