The Department of Labor has issued more Q&As providing helpful guidance on issues under the Families First Coronavirus Response Act leave programs. We now have answers to the questions below. Our comments on the implications of these answers are also provided.
Shelter-In-Place and Stay-At-Home Orders Qualify as “Quarantine or Isolation” Orders
Question: How do I know if I can receive paid sick leave for a Federal, State, or local quarantine or isolation order related to COVID-19?
Answer: 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.
Comments:
To the extent a stay-at-home order causes the employer not to have work for the employee, the employee cannot base a leave request on the employee’s inability to work or telework.
However, if the employer has work for the employee, and the proximate cause of the employee not being able to work is that the employee (or someone they need to care for) is subject to a stay-at-home order, then the employee can take paid leave under the FFCRA.
Caring for Others in Quarantine or Isolation Only Qualifies if the Employee’s Relationship Creates an Expectation that the Employee Would Care for the Individual, and the Individual is Unable to Care for Them Self
Question: When am I eligible for paid sick leave to care for someone who is subject to a quarantine or isolation order?
Answer: You may take paid sick leave to care for an individual who, as a result of being subject to a quarantine or isolation order, is unable to care for him or herself and depends on you for care and if providing care prevents you from working and from teleworking. Furthermore, you may only take paid sick leave to care for an individual who genuinely needs your care. Such an individual includes an immediate family member or someone who regularly resides in your home. You may also take paid sick leave to care for someone if your relationship creates an expectation that you would care for the person in a quarantine or self-quarantine situation, and that individual depends on you for care during the quarantine or self-quarantine.You may not take paid sick leave to care for someone with whom you have no relationship. Nor can you take paid sick leave to care for someone who does not expect or depend on your care during his or her quarantine or self-quarantine.
Question: Can I take paid sick leave to care for any individual who is subject to a quarantine or isolation order or who has been advised to self-quarantine?
Answer: No. You may take paid sick leave under the FFCRA to care for an immediate family member or someone who regularly resides in your home. You may also take paid sick leave under the FFCRA to care for someone where your relationship creates an expectation that you care for the person in a quarantine or self-quarantine situation, and that individual depends on you for care during the quarantine or self-quarantine.
However, you may not take paid sick leave under the FFCRA to care for someone with whom you have no relationship. Nor can you take paid sick leave under the FFCRA to care for someone who does not expect or depend on your care during his or her quarantine or self-quarantine due to COVID-19.
Comment: employers are permitted to ask what the employee’s relationship is with the person they need to care for due to quarantine or isolation. Presumably, employers could inquire further if (i) the relationship provided is not obviously one that creates an expectation that the employee will care for the person in quarantine or isolation, and (ii) that individual depends on the employee for care during the quarantine or isolation.
Caring for a Child Over 18 Due to a School or Place of Care Closure only Qualifies if the Child is Disabled and Cannot Care for Themselves
Question: May I take paid sick leave or expanded family and medical leave to care for my child who is 18 years old or older?
Answer: It depends. Under the FFCRA, paid sick leave and expanded family and medical leave include leave to care for one (or more) of your children when his or her school or place of care is closed or child care provider is unavailable, due to COVID-19 related reasons. This leave may only be taken to care for your non-disabled child if he or she is under the age of 18. If your child is 18 years of age or older with a disability and cannot care for him or herself due to that disability, you may take paid sick leave and expanded family and medical leave to care for him or her if his or her school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 related reasons, and you are unable to work or telework as a result.
In addition, paid sick leave is available to care for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. If you have a need to care for your child age 18 or older who needs care for these circumstances, you may take paid sick leave if you are unable to work or telework as a result of providing care. But in no event may your total paid sick leave exceed two weeks.
Comment: Presumably, if an employee asks for paid FFCRA leave to care for a child over 18, and does not allude to the child being disabled, the employer could ask for an explanation as to why it is necessary to care for the child. Generally, employers will not ask for a detailed explanation, such as the nature and extent of the child’s disability, or any other documentation of the disability.
Employee Self-Diagnosis Does Not Qualify
Question: I am an employee. I become ill with COVID-19 symptoms, decide to quarantine myself for two weeks, and then return to work. I do not seek a medical diagnosis or the advice of a health care provider. Can I get paid for those two weeks under the FFCRA?
Answer: Generally no. If you become ill with COVID-19 symptoms, you may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine. If you test positive for the virus associated with COVID-19 or are advised by a health care provider to self-quarantine, you may continue to take paid sick leave. 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. Note that you may not take paid sick leave under the FFCRA if you become ill with an illness not related to COVID-19. Depending on your employer’s expectations and your condition, however, you may be able to telework during your period of quarantine.
Comment: This is not very helpful as a practical matter, because the DOL Rules do not permit employers to ask for any documentation when an employee asks for leave on the grounds that the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis. Perhaps the DOL will change its mind on this.
