Employer Update on the FFCRA
By: Peter R. Siegel, Esq. and Alejandro I. Leiva, Esq.
First and foremost, we hope each of you and your families are well as we continue to navigate through this difficult period for all of us. Many of you have asked to receive our periodic updates on all the new laws and regulations which are already having an immediate and dramatic impact on the employer-employee relationship. The good news is that with respect to the recently enacted Families First Coronavirus Response Act (the “FFCRA”), the U.S. Department of Labor (“DOL”) continues to move quickly in issuing guidance intended to clarify many remaining “gray areas” in the law. As part of these efforts, DOL has (1) significantly updated the “FAQ” referenced in our March 31, 2020 Client Alert, and (2) issued a lengthy “temporary rule” which is scheduled to expire on December 31, 2020. These latest publications from DOL should serve as guideposts for employers attempting to minimize liability by fully understanding their obligations under the FFCRA. Below are some of the noteworthy highlights for your consideration:
For purposes of the FFCRA, a federal, state, or local quarantine or isolation order (which may serve as the predicate under which an employee is entitled to paid sick leave) includes (1) quarantine or isolation orders, (2) shelter-in-place orders and (3) stay-at-home orders which prevent the employee from working (or teleworking) even though the employer has work the employee could perform “but for” the order. The FFCRA makes no distinction as to whether the above-referenced orders were issued by a federal, state, or local government authority. However, DOL has made clear that employees are not entitled to paid sick leave for this qualifying reason if the employer does not have work for the employee to perform as a result of the foregoing orders.
An employee is eligible for paid sick leave if a health care provider directs or advises the employee to stay home or otherwise quarantine himself/herself because the health care provider believes the employee may have COVID-19 or is particularly vulnerable to the virus. However, the employee’s self-quarantine (based upon such medical advice) must prevent him/her from working (or teleworking).
Employees may not take paid sick leave under the FFCRA if they unilaterally decide to self-quarantine for an illness without medical advice, even if they are experiencing COVID-19 symptoms. Furthermore, employees may not take paid sick leave under the FFCRA if they become ill with an illness unrelated to COVID-19.
The plain language of the FFCRA suggests that in order to receive paid sick leave and/or expanded family and medical leave benefits because the employee must care for his/her child when the child’s school or place of care is closed or the child care provider is unavailable due to the COVID-19 pandemic, the child must be under the age of 18. However, DOL has now stated that such leave benefits are also available if (1) the employee’s child is 18 years of age or older with a disability and cannot care for himself/herself due to that disability, and (2) the employee is unable to work or telework as a result.
If an employee receives workers’ compensation or temporary disability benefits because the employee is unable to work, he/she may not take paid sick leave or expanded family and medical leave. However, if the employee was able to return to light duty and a qualifying reason prevents him/her from working, he/she may take paid sick leave or expanded family and medical leave, if and when applicable.
Paid sick leave is available where an employee is unable to work because he/she needs to care for an individual who is either (1) subject to a federal, state, or local quarantine or isolation order, or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. This qualifying reason applies only if “but for” a need to care for an individual, the employee would be able to perform work for his/her employer. An employee caring for an individual may not take paid sick leave if (a) the employer does not have work for him/her to perform, or (b) the employee has no personal relationship with that individual (i.e., the individual is not an immediate family member, 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/she self-quarantined or was quarantined).
For those employers covered by the FMLA prior to April 1, 2020 (i.e., those with 50 or more employees within a 75-mile radius), any time taken by an eligible employee as expanded family and medical leave counts towards the twelve workweeks of unpaid FMLA leave to which the employee could be entitled under the pre-existing FMLA regulations.
The Labor and Employment Team at Greenspoon Marder remains committed to advising businesses (regardless of size, sector and location) on how best to manage today’s workplace in this unprecedented era of the coronavirus pandemic. Feel free to reach out at any time if we can be of service.
About Greenspoon Marder Greenspoon Marder LLP is a full-service law firm with over 225 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has maintained a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.
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