Founder and Managing Partner
Temporary regulations applicable to the Families First Coronavirus Response Act (FFCRA) were released by the DOL today. Among other things, the regulations clarify that state and local shelter in place and safer at home orders and directives do qualify as a quarantine or isolation order for the purposes of emergency paid sick leave (EPSL). However, this leave is available only when an employer is open and operational and has work for the employee to do, but it is the employee who is unable to work due to the order. Thus, if an employer is closed because it is a non-essential business and ordered to close under the state or local order, or the employer is an essential business (and remains open), but experiences a slowdown in customers such that there is no work for the employee, the affected employee would not be entitled to EPSL absent some other qualifying reason. On the other hand, if the employee is scheduled to work or can telework, but experiences some circumstance related to the stay at home order preventing her from working, she can avail herself of the leave.
The regulations also provide additional information as to documentation required from the employee to request leave: (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.
To take EPSL under the first provision (prevented from work under quarantine or isolation order), an Employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order. To take EPSL under the second reason (health care directed quarantine), an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19. To take EPSL under the fourth reason (caring for someone), an Employee must additionally provide the Employer with either: (1) the name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or (2) The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.
To take EPSL under the fifth reason (childcare) or to take Expanded Family and Medical Leave (EFMLA), an Employee must additionally provide: (1) the name of the Son or Daughter being cared for; (2) the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and (3) a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.
Finally, employers can also request an employee to provide additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information about what is required to redeem the tax credits, please consult the IRS's website.
We will be updating our FAQ and providing additional updates as to the implementation of this leave, including additional guidance from the regulations. Remember the availability to take FFCRA leave begins today, April 1, 2020, so please contact competent employment counsel to discuss any questions you might have.