Thursday, April 2, 2020

Stay-at-home orders as "quarantine or isolation" orders under the FFCRA

Welp, yesterday's release of the DOL regs for the FFCRA answered one question: Are statewide shelter-in-place or stay-at-home orders a form of "quarantine or isolation" order that justifies emergency paid sick leave? Yes. But, the explanation sure seems to gut the rule.

Definition of "subject to a quarantine or isolation order"

Under the FFCRA, employees are eligible for emergency paid sick leave if they are unable to work (or telework) because they are "subject to a quarantine or isolation order." We finally have a definition:
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.
(underline added). Welp, that settles it - "shelter-in-place, or stay-at-home orders" count! Not so fast. 

The coffee shop is closed

The employee is still not eligible for leave if the employer does not have work for the employee. The regs include a lengthy (~60 pages) summary, which includes a coffee shop example:
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. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.
A footnote, makes it even harder for employees to take advantage of a stay-at-home order:
Gov. Wolf
This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.
Let's take a step back and examine Governor Wolf's stay-at-home order and apply the rule to it. 

Governor Wolf's stay-at-home order 

In Pennsylvania, Governor Wolf has issued a statewide stay-at-home order. Notably, it allows people to leave their homes to work at a life-sustaining business. Therefore, those employees will presumably be unable to use emergency sick leave under the "quarantine or isolation" order provision (unless they are individually subject to something more specific). What about employees of non-life-sustaining businesses? The physical locations for those business have closed (they're the closed "coffee shops" from the summary of the regs). So, it's hard to see how those employees would be eligible for emergency paid sick leave either. To the extent those businesses can still operate remotely - well, a stay-at-home order will not generally prevent someone from working from home, right? So, what's left?

The lawyer's power outage

The summary provides an example of a lawyer who is working from home ("telework" in the language of the statute):
For example, if a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.
Okay - so, employees subject to a stay-at-home order, who work for a non-life-sustaining business, that has not shut down, and provides teleworking will be eligible for emergency paid sick leave during a power outage? Frankly, I don't even understand this one relatively obscure example. Wouldn't it be the power outage, and not the stay-at-home order, that prevented the attorney from working?

I mean, presumably we can come up with other scenarios where the teleworking employee is prevented from working... but it sure seems like the general rule (that stay-at-home orders "count") has been swallowed by the explanation (that the orders don't count where there is a lack of work resulting from the order as applied to the business generally).  


  1. I have a scenario for you, but would prefer not to air it on a public blog...can I email you?