Monday, April 6, 2020

Coronavirus Update 4-6-2020 number 2: A 4th set of FAQs from the DOL on the FFCRA (and another Zoominar)

If you thought the DOL was done publishing FAQs on the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act with the publications of last week’s regulations, boy do I have a surprise for you.

Over the weekend, the DOL published its 4th set of FAQs discussing the FFCRA (nos. 60 - 79).

What has the DOL clarified in its latest set of FAQs?

  • A local quarantine or isolation order includes shelter-in-place or stay-at-home orders, but they only qualify for paid sick leave if that order is the cause of an employee’s inability to work (or to telework).

  • An employee is only eligible for paid sick leave for his or her own quarantine if advised or directed as such by a health care provider because the health care provider believes the employee may have coronavirus or are particularly vulnerable to coronavirus, and quarantine based upon that advice prevents the employee from working (or teleworking).

  • An employee is not eligible for paid sick leave if the employee unilaterally decides to self-quarantine without medical advice, even if the employee has coronavirus symptoms.

  • An employee is eligible for paid sick leave to care for an individual subject to a quarantine or isolation order, but only if that individual genuinely needs the employee’s care. This includes an immediate family member, someone who regularly resides in the employee’s home, and someone with whom the relationship creates an expectation that the employee would care for him or her in quarantine, and that individual depends on the employee for care during the quarantine. It does not include someone with whom the employee has no relationship.

  • A “child care provider” is someone who cares for an employee’s child, including individuals paid to provide child care, like nannies, au pairs, and babysitters, and individuals who provide child care at no cost and without a license on a regular basis, such as grandparents, aunts, uncles, or neighbors.

  • A child’s school or place of care that has moved to online instruction is considered “closed” for purposes of paid leave under the FFCRA.

  • School closure and loss of child care paid leave is only available to care for an employee’s children, not for the care of other’s children.

  • The “substantially similar conditions” that qualify for paid sick leave under reason 6 in the FFCRA remains undefined.

  • Staffing companies with fewer than 500 employees must provide paid sick leave and expanded family and medical leave to all of their employees, including internal employees and staffed workers placed outside of the company.

  • An employee receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan generally does not qualify for paid sick leave or expanded family and medical leave.

  • An employee on a voluntary leave of absence can end the leave and being qualifying for paid sick leave and expanded family and medical leave under the FFCRA. An employee on a mandatory leave of absence (i.e., furlough) does not qualify for leave benefits under the Act (but might qualify for unemployment).

  • The FFCRA was effective April 1, but the DOL will not enforce it against employers that have made reasonable, good faith efforts to comply with the Act until after April 17.