4.7.20

The Families First Coronavirus Response Act requires employers with fewer than 500 employees to provide paid sick leave and expanded family and medical leave to employees who are unable to work due to COVID-19. The statute lists six qualifying reasons for paid sick leave, including when an 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.” The U.S. Department of Labor’s recent regulations provide further insight into what it means to be unable to work due to a quarantine or isolation order for purposes of paid sick leave under the FFCRA.

The new regulations define “subject to a quarantine or isolation order” broadly to include “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order.” This definition also includes circumstances in which a “government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing these categories of Employees to be unable to work even though their Employers have work for them.”

Notwithstanding this expansive definition, not all employees who are subject to government orders restricting travel or mobility are entitled to paid sick leave under the FFCRA. Instead, the regulations specify that only a relatively narrow group of employees subject to such orders will be entitled to paid leave—namely, only employees who would be able to work or telework if they were not subject to such an order. Put another way, the regulations make clear that an employee subject to a quarantine or isolation order may not take paid sick leave where the employer does not have work for the employee as a result of an order or other circumstances.

The new regulations are consistent with the Department of Labor’s FAQs. In that guidance, the department stated that an employee is “unable to work or telework” only if the employer has work available for the employee and one of the six qualifying reasons prevents the employee from being able to perform that work, either at the normal worksite or by teleworking. If an employer closes a worksite, either for lack of business or because it is required to close the site pursuant to a government order, then the employee is not entitled to paid sick leave, though he or she might be eligible for unemployment insurance benefits.

To explain this distinction, the department uses a hypothetical coffee shop as an example of how the “unable to work” criteria might play out in various scenarios involving quarantine or isolation orders. If, for example, a coffee shop closed temporarily or indefinitely due to a coronavirus-related downturn in business, its employees would no longer have work available. Accordingly, a cashier who worked at the coffee shop would not be eligible for paid sick leave, even if she was also subject to a stay-at-home order. That is because the cashier’s inability to work does not result from her own need to comply with the stay-at-home order, but rather from the closure of her workplace. According to the Department of Labor, this analysis holds true even if the coffee shop shut down as a direct result of the stay-at-home order. If the coffee shop closed because its customers must stay at home, the cashier would be unable to work because the customers were subject to the stay-at-home order, not because the cashier was subject to the order. Similarly, if the coffee shop closed due to a government order requiring it to close, the cashier would be unable to work because the coffee shop was subject to the order, not because the cashier was subject to the order. In either case, the cashier would not be entitled to paid sick leave.

In determining whether an employee may take paid sick leave, the question is whether the employee would be able to work or telework “but for” the employee being required to comply with a quarantine or isolation order. This inquiry requires an individualized assessment of the reasons an employee is unable to work and whether the employer has work available for the employee to perform, either at the regular worksite or by teleworking. Thus, despite the broad definition of “quarantine or isolation orders” set forth in the regulation, only a relatively small subset of employees subject to government orders are likely to be entitled to paid sick leave under the FFCRA.

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