DOL Releases FFCRA Employee Rights Poster - UPDATED WITH NEW AND IMPROVED GUIDANCE!
The Department of Labor has issued the Employee Rights poster addressing the two Emergency leave laws passed *last week.* We discussed these two laws and their requirements here.
Please note that since that blog post was issued the effective date of these leave laws has been moved up to April 1, 2020 rather than April 2nd as previously reported.
<the portion of this blog highlighted in red is subject to the UPDATE>
Perhaps more importantly are the legal opinions that orders such as the Stay Home Work Safe effective in Harris County and other counties throughout Texas WILL NOT TRIGGER the Paid Sick Leave Act. Here is what we reported earlier in the week:
Moreover, attorneys reviewing this legislation have concluded that the Stay Home Stay Safe order WILL NOT trigger an employer's obligation under the Emergency Paid Sick Leave Act (PLSA). My employment lawyers of choice from Martin, Disiere, Jefferson, and Wisdom, LLP have offered the following:
As previously reported, the new paid sick leave act – which goes into effect on April 2 – provides sick leave for a half dozen reasons, including when an employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
The new act does not define what a quarantine or isolation order is, but the CDC has provided guidance. The CDC has stated that an isolation order is issued to a person who has "a communicable disease" to separate him/her from those who are healthy. Isolation restricts the movement of "ill persons" to help stop the spread of certain diseases. A quarantine order is similar, but it restricts the movements of a person who "ha[s] been exposed to a communicable disease." www.cdc.gov/quarantine/pdfs/...
As a result, we do not believe that the recent stay at home orders issued by Dallas, Travis and Harris Counties – and others – trigger paid sick leave.
So, the employees could use their own paid time-off (if available) or go unpaid for the period of the shut-down.
This is a very important interpretation because many employers are simply assuming that the Stay Home Stay Safe order is the same as a quarantine or isolation order. IT IS NOT!
Meanwhile, here is the new DOL poster. It should be posted at your office and distributed via email to anyone working at home.
UPDATE: The DOL has issued regulations and some guidance on the statute that has added some NUANCE to the "quarantine/isolation order" trigger analysis. Here is the following guidance:
Subject to a quarantine or isolation order. For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.
The regulatory agency giveth and taketh away. Greatly expanding the meaning of "quarantine or isolation order" in the original text to include "stay at home" and "shelter in place" order in theory swells the size and grasp of that trigger provision. But, just as quickly, the DOL deflates it by applying the condition that the employee in fact would have been able to work but for the order. Thus:
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. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees.
Confused? Well, at the end of the day, we believe this means it will apply to damn few employees barring the development of partial stay home orders that keep workers at home but allow businesses to operate.
In theory, a business could be an essential business working only with essential staff and have employees who are not essential and not able to work from home. Again, in theory, those employees MIGHT trigger this paid sick leave obligation.
Regardless, it seems our original suggestion holds true. DO NOT ASSUME an employee is entitled to the paid leave payments without analyzing each situation on a case by case basis.