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.


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