Shelter at Home Qualifies: Regulations Issued for Emergency Paid Sick Leave and Extended Family Care

The U.S. Department of Labor has adopted initial regulations providing guidance under the Families First Coronavirus Response Act Emergency Paid Sick Leave and Extended Family and Medical Leave benefits. The text of the rules can be viewed here.

Apart from a determination that shelter-at-home orders may qualify employees for benefits, the rules largely follow prior guidance on issues such as leave rights, small employer exemption criteria, benefit calculation, and eligibility. It also contains useful definitions and other important points, such as:

- Most significant (and unexpected): Employees are eligible for Emergency Paid Sick Leave benefits when they must stay home due to a state or local "shelter at home" order, or when certain classes of people (such as those over a certain age) are advised to stay home. (Contrary to most expectations, this qualifies as a "quarantine or isolation order" under the FFCRA despite contrary federal definitions.)

Note: "Essential Businesses" and employers maintaining "Minimum Activities" are likely to argue that their employees are not prevented from working under these regulations, as workers are permitted to travel for such activity, unless an employee falls within a group specifically advised to remain at home.

- (Layoffs not covered): Benefits are not available when an employee has been laid off; a stay-at-home or similar order must "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." Similarly, benefits are not available "where the Employer does not have work for the Employee as a result of the order or other circumstances."

- (Health Care and First Responders): Health Care Providers and Emergency Responders have an expanded definition under the FFCRA, including "anyone employed" at various medical and healthcare related entities. This definition will not apply to other parts of the Family Medical Leave Act.

- (Child Care): Only child care leave can be taken intermittently (in increments agreed with the employer). Leave for other purposes must be taken in whole-day increments until the need for leave is over.

- (Child Care Providers): "Child care provider" need not be a compensated caregiver if it is a friend or family member who regularly cares for an employee's child.

We will continue to review and monitor these regulations, particularly application to state and local government orders. Continuing DOL developments can be viewed at https://www.dol.gov/coronavirus.

Counties Require Employers to Post and Distribute a "Social Distancing Protocol" Before April 3

Various California counties have revised their shelter-at-home orders, placing greater limitations on personal activities and the number of “essential” businesses and activities. These include (for now) San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Sonoma and soon Napa counties.

The limitations still allow a wide range of businesses activities. They also permit almost all businesses to continue “minimum” necessary activity such as securing inventory and property, and performing essential administrative functions such as running payroll and maintaining IT services.

Employers maintaining onsite functions as an “Essential Business” in the affected counties must pay attention to another important part of the revised orders. Before April 3, every Essential Business with activity at its worksite(s) – whether open to the public or not – must adopt and post a “Social Distancing Protocol” explaining steps taken by the business to ensure (when applicable):

• Limiting the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another at all times, except as required to complete the Essential Business activity;

• Designating where lines may form at a facility, marking six-foot increments at a minimum, establishing where individuals should stand to maintain adequate social distancing;

• Providing hand sanitizer, soap and water, or effective disinfectant at or near the entrance of the facility and in other appropriate areas for use by the public and employees, and in locations where there is high-frequency employee interaction with members of the public (e.g. cashiers);

• Providing for contactless payment systems or, if not feasible to do so, the providing for disinfecting all payment portals, pens, and styluses after each use;

• Regularly disinfecting other high-touch surfaces; and

• Posting a sign at the entrance of the facility informing all employees and customers that they should: avoid entering the facility if they have a cough or fever; maintain a minimum six-foot distance from one another; sneeze and cough into one’s elbow; not shake hands or engage in any unnecessary physical contact.

The protocol should also explain any additional social distancing measures implemented by the business, such as those suggested by CDC guidance here.

Copies of the protocol must be posted near entrances in an easily viewable location and a copy must be provided to each employee working at the facility.

Finally, the protocol must model a format provided as an appendix to the revised orders. See Sonoma County “Appendix A,” here. It must be in “substantially” this form, though employers may prepare their own similar format.

One thing is not yet clear: while “Essential Businesses” are required to post the protocol, the revised orders do not expressly apply the requirement to businesses performing only “minimum” necessary activities such as security and core administration. Even if the requirement does not apply, though, minimum activities must still follow “Social Distancing and Hygiene Requirements,” including:

• Maintaining at least six-foot social distancing from individuals who are not part of the same household or living unit;

• Frequently washing hands with soap and water for at least 20 seconds, or using hand sanitizer that is recognized by the Centers for Disease Control and Prevention as effective in combatting COVID-19;

• Covering coughs and sneezes with a tissue or fabric or, if not possible, into the sleeve or elbow (but not into hands); and

• Avoiding all social interaction outside the household when sick with a fever or cough.

Because these appear to be social rather than work-oriented, we recommend that employers performing minimum activities still adopt and post a Social Distancing Protocol applicable to employees.

The current requirements begin at 11:59 p.m. on Tuesday, April 2, and may be enforced by local health or law enforcement personnel.

Copies of the new orders can be viewed at: San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Sonoma. A MS Word version of the model protocol is at Sonoma County’s site, here. A fillable .pdf is at San Mateo County’s site, here.

DOL Provides Guidance for Exemption from Paid Sick Leave and Extended Family Leave Under the FFCVA

The U.S. Department of Labor ("DOL") has published guidance anticipating its forthcoming regulations regarding exemption from Emergency Paid Sick Leave and Expanded Paid Family and Medical Leave requirements for businesses with fewer than fifty employees.

Under the guidance, an employer with fewer than fifty employees may claim exemption from the requirements if they "would jeopardize the viability of the small business as a going concern." To establish exempt status, an authorized officer of the business must determine that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or

3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

The DOL will not require employers to submit document supporting the exemption but will require documentation of the authorized officer's determination.

There is risk in making this decision. First, the guidance is not yet a regulation and could change (especially if there is a change of administrations after the presidential election, which will occur well within the time employees could bring claims). Second, it remains to be seen how and when an employer's determination can be second-guessed. Failure to provide leave if required can result in civil damages and penalties under the FFCRA and its underlying laws. As always, we recommend consulting with counsel when making important decisions under state and federal employment laws.

The DOL's guidance, which is changing often, can be found here. The law and its benefit requirements take effect on Wednesday, April 1, 2020.