Certain Questions under FFCRA Remain Unclear

Does a stay at home order qualify use of emergency paid sick leave? The extent of the definition of "care for." Use of PTO and EFML.

On April 6, 2020,  the DOL issued new questions and answers (questions 60-79) regarding FFCRA, but the following issues remain unclear:

  • Whether a state or local shelter-at-home order constitutes a qualifying use of emergency paid sick leave (EPSL) for an essential employee who is high risk (65 or older or underlying health conditions)
    • Essential workers who are exempt from shelter-at-home orders will generally not qualify based on the shelter-at-home order alone, but if they are high risk they might
  • The extent of the definition of “care for” with respect to an employee taking EPSL to care for someone who is subject to a shelter-at-home order
    • As of now, staying home just to reduce the exposure risk to someone you live with likely does not constitute “caring for” that person, and probably does not qualify you for EPSL
  • Whether an employee can be required to use previously accrued PTO concurrently with emergency family medical leave (EFML) to care for child whose school or childcare provider is closed, or whether the employee may choose to use such time off to supplement the reduced rate of pay under EFML
    • We interpret the issue as follows: For the first 10 days, the employee may take EPSL.  Then, the employer can require the employee to use previously accrued PTO concurrently with EFML, during which the employee will receive their full regular rate of pay.  When the PTO is exhausted, the employee will receive 2/3 of the regular rate of pay for the remainder of EFML.

We expect the DOL to issue additional guidance or clarification in the days to come.  In the meantime, keep in mind that as long as you make a good faith effort to comply, the DOL will not enforce violations until April 17.  We will continue to monitor any updates and share new developments as they become available.

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