By Alexandra J. Blackwell, Jeselskis Brinkerhoff and Joseph LLC
We are currently living in unprecedented times: our healthcare system is being flooded with patients suffering from symptoms and complications related to COVID-19; schools have closed for the remainder of the school year; parents are working from home; many businesses have temporarily closed or drastically cut their workforce; and the number of people filing for unemployment has skyrocketed in a few short weeks. These unprecedented times have resulted in our government providing unprecedented benefits — including enacting laws providing many employers with economic relief while expanding support for employees.
The COVID-19 Aid, Relief, and Economic Security Act (CARES Act) created pandemic unemployment assistance that allows for more people to qualify for unemployment in addition to making the available benefits more substantial in an effort to help those in need. The U.S. Department of Labor (DOL) has also issued, effective April 2, 2020 through December 31, 2020, a set of temporary rules (the Rules) that expand the implementation of the emergency paid sick leave (EPSL) and Expanded Family and Medical Leave (EFMLA” established by the recently enacted Families First COVID-19 Response Act (FFCRA). While the DOL Rules cover a lot of ground related to the rights and responsibilities of workers and employers under FFCRA (see Final Temporary Regulations here), below we have highlighted some of the areas that may impact individuals, working-parents, and caregivers with regard to EPSL:
The Rules confirm the six (6) circumstances which qualify an employee for EPSL under the FFCRA:
- The employee is subject to a federal, state, or local quarantine or isolation order.
- The Rules broadly define what constitutes a “quarantine or isolation order” to include all governmental orders that advise some or all of the citizens to stay in place, stay at home, quarantine, or otherwise restrict the citizens’ mobility. However, it should be noted that if the quarantine or isolation order is not the “but for” cause of an employee’s inability to work or telework, then the employee would not be entitled to Paid Sick Leave.
- The employee was advised by a healthcare professional to self-isolate (“Quarantine Recommendation”).
- The Rules clarify that the advice to self-isolate must be based on the healthcare professional’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. Similar to the point above, if the advice to self-isolate is not the “but for” cause of the employee’s inability to work or telework, then that employee is not entitled to Paid Sick Leave.
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis:
- Paid Sick Leave is only available during the time the employee is taking affirmative steps to obtain a medical diagnosis. However, if the employee is eligible and able to telework, then, generally, Paid Sick Leave is not available during the time that the employee is waiting for test results. If the employee is not eligible or able to telework, then Paid Sick Leave is available while the employee is waiting. If the employee does not meet the criteria to be tested for COVID-19, then Paid Sick Leave is not available for this qualifying reason. However, the employee may qualify if they have been advised to self-isolate.
- If the employee continues to suffer from symptoms of COVID-19 after seeking medical care and a diagnosis and is unable to telework, the employee is eligible to continue to use Paid Sick Leave.
- If the employee tests positive but is asymptomatic and a healthcare provider recommends that the employee self-quarantine and the employee is unable to telework, then the employee is eligible for Paid Sick Leave.
- The employee is caring for his or her child or children because the school or childcare provider is closed or unavailable.
- The Rules clarify that the need for (and use of) Childcare Paid Sick Leave will be generally interpreted the same as the need for (and use of) EFMLA Leave.
- Parents of adults with disabilities who need to stay home to care for their adult children with disabilities due to COVID-19-related closures can now qualify for the expanded paid leave offerings. The Rules further clarify that the definition of “son or daughter” for the new leave program should be consistent with that of the existing FMLA, which “expressly includes children 18 years of age or older and incapable of self-care because of a mental or physical disability.”
- Unfortunately, at this time, the Rules are only expanded for parents of children with disabilities. It does not cover siblings or relatives who may be assisting with similar care.
- The employee is caring for an individual subject to a quarantine order or quarantine recommendation.
- The Rules confirm that in order for the employee to qualify for Paid Sick Leave the following circumstances must be present:
- The individual requiring care must qualify for the Quarantine Order or Quarantine Recommendation leave;
- The individual must have a genuine need for care from the employee; and
- The individual must be the employee’s immediate family member, a roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.
- Employee is experiencing a substantially similar condition.
- The Rules confirm that “a substantially similar condition” will be determined by the Secretary of Health and Human Services, but no additional information on this issue was provided in the Rules.
Exceptions and Limitations to the FFCRA and EPSL:
- If the business is forced to shut down temporarily or indefinitely due to circumstances attributable to COVID-19, the employee would not be eligible for EPSL.
- Small businesses with fewer than fifty (50) employees are not automatically exempt from FFCRA. Section 826.40(b) only allows for a small business to be exempt from the requirement to provide leave due to school closures or childcare unavailability when:
- Such leave would cause the employer’s expenses and financial obligations to exceed its available business revenue and cause the employer to cease operating at a minimal capacity;
- The absence of the employee who requested the leave would pose a substantial risk to the financial health and/or operational capacity of the business because the employee possesses specialized skills, knowledge of the business, or responsibilities; or
- The employer cannot find enough other workers who are able, willing, qualified, available at the time(s) and place(s) needed to perform the labor or services the employee requesting leave provided, and these services or labor are necessary for the business to operate at minimal capacity.
In the circumstances above, the small business employers may deny EPSL or EFMLEA leave only to the specific employees who absences would cause the employers’ expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at a minimum capacity.
To qualify for the small business exception, the employer must document that a determination was made pursuant to the criteria set forth by the DOL in Section 826.40(b)(1). This determination and supporting documentation should be retained in the employer’s business files.
- It should be noted that small employers are NOT exempt from providing leave for any other type of permissible uses under the EPSL. The above-mentioned exemption only applies to leave for care for the employee’s child whose school or place of care is close or whose childcare provider is unavailable.
The DOL is working to provide the public with answers to the most commonly answered questions on the Questions and Answers page (which can be found here). The DOL continues to add and make revisions to its list of questions and answers. However, given the speed at which the FFCRA was written before its enactment, there are still many areas that need clarified and questions that need answered.
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