For the past month, I’ve been in the leave law trenches with several Littler colleagues Alexis Knapp, Jim Paretti, Sebastian Chilco and Michael Lotito. The ‘virtual’ trenches, that is, which serves them well, as they have no clue I’ve spent nearly the entire time without a shower and in my PJs.
When we all learned Friday afternoon that the Department of Labor had published yet another set of Q&As interpreting the emergency paid sick and paid FMLA leave law, I won’t sugar coat it – we wanted to cry. After all, we were fresh off our analysis of the new DOL regulations the day before, and at least two phases past bleary-eyed.
After kvetching back and forth in a flurry of emails over the course of approximately 1.85 minutes, we knew we had to get back to work. Our colleague, Sebastian, took the lead in drafting our analysis of the latest round from the DOL. I couldn’t say it any better than he did, so I’ve lifted much of his great work (added some of my embellishments) and publish it here.
After giving employers a day off from addressing new information concerning the federal Families First Coronavirus Response Act (FFCRA), the DOL released 20 new Q&As concerning employer obligations and employee rights under the new paid sick leave (EPSL) and paid FMLA leave (FMLA+) law. New questions and answers start at #60, with some minor revisions to earlier Q&As. The full set of Q&As can be found here.
In its latest round, DOL reiterated much of what it pronounced in EPSL and FMLA+ regulations issued earlier last week. Notably, the DOL again touched upon shelter-in-place orders and their impact on EPSL and FMLA+, further explained various reasons for EPSL, and fine-tuned some earlier answers.
We highlight the relatively important stuff here:
More on Shelter-in-Place Orders and No Self-Quarantines: In the new batch of Q&As, the DOL addresses several situations regarding how employers should evaluate FFCRA leave eligibility due to shelter-in-place orders. For example, in response to a question about how employees should know whether they can receive EPSL for a “Federal, State or local quarantine or isolation order,” the DOL explains in FAQ #60:
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 cause you to be unable to work (or to telework) even though your employer has work that you could perform but for the order. You may not take paid sick leave for this qualifying reason if your employer does not have work for you as a result of a shelter-in-place or a stay-at-home order… (emphasis added).
Also, in the DOL’s temporary regulations issued on April 1, the Agency highlights the many ways FFCRA emergency paid sick leave (EPSL) differs from pre-FFCRA state and local mandatory paid sick leave laws. For instance, in new FAQ #62, the DOL drills home this point by clarifying that employees cannot use FFCRA leave to self-quarantine on their own without any input from a medical professional:
You may not take paid sick leave under the FFCRA if you unilaterally decide to self-quarantine for an illness without medical advice, even if you have COVID-19 symptoms.
The examples the DOL provides on shelter-in-place and quarantine situations cover quite a bit of ground and are worth a careful read.
School & Care Place Closure Applies, Even if Online: The DOL emphasizes “closure” standards for schools and places of care focus on physical closures, so even if the entity provides “online” or “distance learning” instruction, a closure occurs and FFCRA leave might be available if all conditions for leave exist.
Watch Out for the Use of the Word “Individual” Under EPSL: Different reasons for EPSL use different definitions. While school/closure and childcare leave may be available only for a son or daughter as the law defines them, caring for someone else who may have COVID-19-related medical issues specified under EPSL is broader, and the law uses the term “individual.”
A new Q&A reminds employers that, even if employees do not qualify to take leave to care for their own child, it does not mean leave might not be available to care for someone else’s child. Generally, employees can take EPSL if, among other reasons, they need to care for an “individual” who is subject to a federal state, or local quarantine or isolation order related to COVID-19 or for whom a health care provider advises self-quarantine due to COVID-19 concerns. As a reminder, the DOL rules define an “individual” as an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for them in a quarantine situation.
In a bit of comic relief (at least as far as my friend Matt Morris and I are concerned), the DOL put us at ease in FAQ #64 by reminding employees, “You may not take paid sick leave to care for someone with whom you have no relationship.” As a result, Matt and I (but mostly Matt) are relieved to know that DOL shut the door on any possibility your employee might have to care for the guy at the end of the bar at the local tavern. [At a time like this, it’s the small victories, people, the small victories.]
DOL Reminds Us that Really Only One Person Should Care for a Child: Naturally, clients have been asking me whether they need to provide leave to an employee because of their kid’s closed school when there is ample evidence that the other parent or another caretaker is available. In FAQ #69, DOL again reminds us that leave is not appropriate in these circumstances:
You may take paid sick leave or expanded family and medical leave to care for your child only when you need to, and actually are, caring for your child if you are unable to work or telework as a result of providing care. Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs. See Question 20 for more details. (My emphasis)
“Substantially Similar Condition” Remains a Mystery: The DOL notes that the Department of Health and Human Services (HHS) has not yet issued guidance on what this last reason for EPSL may include, but, if HHS does not, the DOL will do so.
More Examples of Leave Being Unavailable Without “Work” to Perform: The DOL continues to provide examples of situations in which FFCRA leave is unavailable because employees have no work to perform. The latest examples involve seasonal workers during the off-season, and employees not working because they are not at work and receiving workers’ compensation or temporary disability benefits.
The DOL also addresses scenarios in which employees return to work from a non-working period. For example, if an employee returns to light duty or after a voluntary absence, then experiences a qualifying event, the employee might get FFCRA leave if all conditions for leave exist.
Final Thoughts: The DOL also includes new Q&As regarding staffing company headcount/leave, paying employees with entirely irregular schedules, and more details about the DOL’s non-enforcement position it announced that applies through April 17, 2020.
Keep in mind, too: As it updates these Q&As, DOL has continued to refine some of its earlier Q&As with further clarification and explanation. As a result, employers should always utilize the latest electronic version of those Q&As when looking for answers to questions in real time.