Employee Eligibility for Emergency Sick Leave or Extended FMLA for COVID Related Issues

Last week, the Department of Labor (DOL) published a temporary rule issuing regulations pursuant to Families First Coronavirus Response Act (FFCRA). This rule, in addition to the ever-expanding Families First Coronavirus Response Act (FFCRA) Questions and Answers page, has provided employers with more detailed information on how to administer the FFCRA.

The temporary rule explains that, under the FFCRA, covered employers must provide eligible employees with paid emergency sick time, and expanded the eligibility requirements under the Family Medical Leave Act. Our previous article expands on those definitions, including “covered employer”. The newest guidance, however, gives us a more precise definition of “eligible employee”.

The temporary rule explains that an employee may take paid sick leave if the employee is unable to work because of any one of the six qualifying reasons related to COVID-19. The first reason for paid sick leave applies where an employee is unable to work because he or she is subject to a Federal, State, or local COVID-19 quarantine or isolation order. Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their personal mobility. The rule also explains that an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking, as described therein.

Keep in mind that an employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. 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.

Additionally, it means that if an employee subject to a quarantine or isolation order is able to telework, the employee may not take paid sick leave if:

  • his or her employer has work for the employee to perform;
  • the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and
  • there are no extenuating circumstances that prevent the employee from performing that work.

The upshot of this is that employees are eligible for the emergency sick time and/or expanded family leave provisions if they are unable to work for one of the six reasons under the FFCRA, AND the employer has work available. If the employer is not open, there is no work available, or the employee is furloughed, they are not an eligible employee. Employers must carefully analyze if they are both a covered employer, AND the employee is an eligible employee before providing paid sick time or expanded family leave.