We've Got Your Six (Reasons for Paid Sick Leave Under the FFCRA) Covered.
We’ve Got Your Six (Reasons for Paid Sick Leave Under the FFCRA) Covered.
by Ashley N. Trotto, Esq.
with assistance from Law Clerk Zach Kiffmeyer
The DOL has issued some much-needed guidance on applying the six qualifying reasons for paid sick leave under the Families First Coronavirus Response Act (“Act”). We’ve summarized the six qualifying reasons, including the new guidance, below:
1) An employee is unable to work because he or she is subject to a Federal, State, or local COVID–19 quarantine or isolation order.
a) An employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking. Quarantine or isolation orders include orders advising some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility. The key question is whether the employee would be able to work or telework ‘‘but for’’ being required to comply with a quarantine or isolation order.
b) An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee (e.g., if the employer is temporarily closed due to COVID-19). This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order.
2) An employee is unable to work because he or she has been advised by a health care provider to self-quarantine for a COVID–19 reason.
The regulations clarify that the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID–19, may have COVID–19, or is particularly vulnerable to COVID–19. And, self-quarantining must prevent the employee from working.
3) An employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
a) The regulations list the following symptoms that could trigger an employee to seek a medical diagnosis: fever, dry cough, shortness of breath, or other COVID–19 symptoms identified by the CDC.
b) Paid sick leave must be limited to the time the employee is unable to work because he or she is taking “affirmative steps” to obtain a medical diagnosis. Affirmative steps include time spent making, waiting for, or attending an appointment for a test for COVID–19.
c) An employee may continue to take leave while:
i.) experiencing any COVID-19 symptoms or after testing positive for COVID–19, provided that the health care provider advises the employee to self-quarantine; or
ii.) awaiting a test result.
In the case of an employee who exhibits COVID–19 symptoms and seeks medical advice but is told that he or she does not meet the criteria for testing and is advised to self-quarantine, he or she is eligible for leave under the second reason, provided he or she meets all the requirements spelled out above.
**For the first three qualifying reasons, an employee who can telework is not entitled to paid sick leave if: (a) the employer has work for the employee to perform; (b) the employer permits the employee to perform that work remotely; and (c) there are no extenuating circumstances, including serious COVID-19 symptoms, that prevent the employee from performing that work.
4) An employee is unable to work because he or she needs to care for an individual who (a) is subject to a Federal, State, or local quarantine or isolation order; or (b) has been advised by a health care provider to self-quarantine based on the health care provider’s belief that he or she has COVID-19, may have COVID-19, is particularly vulnerable to COVID-19 or the health care provider has other COVID-19 related concerns.
The regulations clarify that the individual being cared for must be 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 or she self-quarantined or was quarantined.
5) An employee is unable to work because the employee needs to care for his or her son or daughter if (a) the child’s school or place of care has closed; or (b) the childcare provider is unavailable, due to COVID–19 related reasons.
An employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. An employee is not eligible for paid leave if another suitable individual—such as a co-parent, co-guardian, or the usual childcare provider—is available to provide the care the employee’s child needs.
6) An employee is unable to work because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
This is a “catch-all” provision for other circumstances not specifically mentioned in this regulation. To date, no additional conditions have been listed.
A reminder: The required rate of compensation is generally the employee’s regular rate of pay. However, for uses described in (4), (5) or (6) above, the employee’s required rate of compensation shall generally be 2/3 of the employee’s regular rate of pay. Paid sick leave under the Act shall not exceed $511 per day ($5,110 in the aggregate) for uses described in (1), (2), or (3) above or $200 per day ($2,000 in the aggregate) for uses described in (4), (5), or (6) above.
Kennerly Montgomery appreciates your time, and our attorneys are here to assist you during these unusual and unprecedented times. If you have any questions, please reach out to one of our attorneys at (865) 546-7311.