Since the Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020, employers have posed one question more than all others: Does the FFCRA somehow protect employees from layoff (or furlough), at least until after paid leave required by the Act has been provided? In recent informal guidance, the U.S. Department of Labor (“DOL”), the agency charged with implementing and enforcing the FFCRA, has clarified that the answer to this question is “no.”
Source of confusion: What is a “quarantine” or “isolation” order?
Under the FFCRA, employers with fewer than 500 employees are required to provide 80 hours of paid sick leave to employees for certain qualifying reasons. One of those reasons is because the “employee is subject to a Federal, State, or local quarantine or isolation order relating to COVID-19.” While congress doubtless understood this language to be unambiguous, it nevertheless created confusion in light of shelter-in-place and stay-at-home orders applicable in metropolitan areas across the country: If such an order were a quarantine or isolation order, every employee subject to such order would be entitled to 80 hours of paid sick leave under the FFCRA.
Review of Centers for Disease Control and Prevention (“CDC”) guidance, however, suggests that the FFCRA’s reference to “quarantine” and “isolation” orders should not be read broadly to include general orders requiring non-essential workers to stay at home. CDC guidance clarifies that such orders are specific orders directed at specific individuals either separating “sick people with a quarantinable communicable disease from people who are not sick” (an isolation order) or separating and restricting “the movement of people who were exposed to a contagious disease to see if they become sick” (a quarantine order).
DOL clarifies that quarantine and isolation orders are specific, individual orders, making clear that FFCRA benefits do not extend to workers simply because they are subject to stay-at-home orders.
In the time since the FFCRA was signed into law, the DOL has continuously pushed out informal guidance clarifying employer obligations. Most of the guidance has come in the form of a question and answer (“Q&A”) document that the DOL continues to update. The DOL’s Q&As make clear not only that the FFCRA does not provide benefits to employees subject to a stay-at-home order, but also that the FFCRA does not restrict employers from implementing employment actions (e.g., layoffs, furloughs) that are necessary to respond to adverse market conditions caused by COVID-19.
If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?
No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.
If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?
No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?
No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.
Do I have a right to return to work if I am taking paid sick leave or expanded family and medical leave under the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act?
Generally, yes. In light of Congressional direction to interpret requirements among the Acts consistently, WHD clarifies that the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.
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However, you are not protected from employment actions, such as layoffs, that would have affected you regardless of whether you took leave. This means your employer can lay you off for legitimate business reasons, such as the closure of your worksite. Your employer must be able to demonstrate that you would have been laid off even if you had not taken leave. (emphasis added)
The bottom line for employers
The FFCRA requires employers with fewer than 500 employees to provide paid sick leave and expanded family and medical leave to certain employees. But it is not a protection against employment actions necessitated by adverse market conditions, and, specifically, it does not prevent covered employers from laying off or furloughing employees as a result of deteriorating economic conditions (even when those conditions are caused by COVID-19).
The FFCRA was passed quickly, and employers were given little time to understand its requirements before its April 1, 2020 effective date. As a result, employers should continue to monitor DOL compliance guidance, and should approach conservatively FFCRA-related questions that remain unanswered.