At Wusinich, Sweeney & Ryan, LLC, we are pleased to help the Pennsylvania employee through this difficult time.

Question

Am I eligible for sick pay or paid leave under the recently passed Families First Coronavirus Response Act (FFCRA)?

If you work for a small employer, which in the United States is typically thought of as a company that employees 500 employees or less, you will be eligible under certain conditions. This answer is more complex than many might think. There are many nuances to this answer.

A simple way of looking at this benefit is that it was designed primarily for situations where there is no "stay-at-home" Order in force across Pennsylvania. If an employee lost work because the business closed pursuant to the "stay-at-home" Order, no matter the size of the company, the employee should file for unemployment. If your company is still operational, then Families First Coronavirus Response Act (FFCRA) benefits could apply in certain scenarios outlined herein.

The FFCRA deals with the immediate problems of how to handle situations where an employee of a small business suffers Covid-19 or a Covid-19 like illness, a Covid-19 quarantine, and/or childcare issues created by Covid-19. The solution is that the small employer is required to pay the employee as discussed more herein. However, they will get tax credits to defray the cost.

One big gap in the law is it only applies to "small" companies. The FFCRA only applies to employees working for companies with 500 or less employees. Moreover, if the leave requirement would jeopardize the viability of their business as a going concern, an employer with less than 50 employees can apply for an exemption.

The FFCRA has two different offerings to employees: sick pay and paid leave. Each type of time off is run by their own law. The sick pay provision is run by the Emergency Paid Sick Leave Act (EPSLA). The leave provision is run by the Emergency Family and Medical Leave Expansion Act (EFMLEA). Both laws involve the ability to take temporary time off and get paid by the employer. Taken together, the two FFCRA laws provide the Covid-19 relief of temporary (80 hours) or moderate duration (up to 12 weeks) to employees depending on their particular circumstance and its relation to Covid-19.

Employees need to be aware that this Act was designed as providing temporary/moderate relief for those in certain Covid-19 related challenges. Even for those employees who are eligible, it is not a long-term answer to the childcare problems, isolation, quarantine or "stay-at-home" issues that many will face by Covid-19. It is a law designed to get many employees immediate relief in limited circumstances.

Consistent with this intent, there is no "carry over" of paid time off after the last day of the FFCRA, December 31, 2020, and employees do not accrue the right to take the pay if they do not take the leave. In short, if employees do not use their paid time off under either law, they lose the paid time off. If they only use part of the paid time off, they lose part of the paid time off.

The limitation to "small" companies is not the only limitation. Employees who are not personally impacted by Covid-19 as explained in this article are not eligible. Moreover, in regards to quarantine, employees have to be careful that Governor Wolf’s "stay-at-home" Order exempts employees who work in certain industries. Moreover, employees who fear exposure but do not have symptoms are not covered by the FFCRA.

I would note that under certain circumstances, employees who have pre-existing health conditions might be protected by another law such as the Americans with Disabilities Act (ADA), but they would not be eligible for FFCRA time off. Employees are not covered whose children are still in school or have childcare unless they receive entitlement under another criteria.

One issue for some employees is that the FFCRA was not immediately effective. The FFCRA did not become operational until April 1st, and effective until April 2nd. Thus, employees who may have needed paid leave or sick time before April 1st were not covered yet. They would have had to look to their employer’s private policy if asking for paid time off before April 1st. Employees who ran out of paid sick time before April 1st would have to look to unpaid protection from the Family and Medical Leave Act (FMLA).

This presentation outlining some key points of interest to an employee relies heavily on Department of Labor temporary regulations. However, sometimes regulations are not quite what a statute dictates. It is possible that courts will ultimately decide that certain regulations were not valid or they may be revised before the regulations become in final form. This presentation is a rough guidance only and an attorney should be consulted to confirm the law applicable to an employee’s situation.

An employee cannot suffer retaliation for asserting rights or inquiring about rights under the FFCRA. An employee can get relief from the Department of Labor. Also, in many circumstances, an employee will have the right to bring a private action with an attorney. As the rules under the EPSLA and the EFMLEA differ and are complicated as to how both laws are enforced, it is recommended you seek legal counsel to explain the nuances of either law.

The rights expressed in either law must be taken before December 31, 2020.

I. THE RIGHT TO PAID SICK LEAVE UNDER THE EPSLA

It is easiest to think of the paid sick leave benefit under the EPSLA as a temporary period, two weeks (80 hours), for treatment, quarantine, or childcare. The benefit is in addition to paid leave the employee already may have under the employer’s policy. Employees eligible under the EPSLA can get paid sick leave if unable to go to work or work remotely as follows subject to a maximum benefit:

Employees who are subject to federal, state, or local quarantine or isolation Order related to Covid-19 will receive full (100%) pay for two weeks.
Employees who have been advised by a healthcare provider to self-quarantine due to concerns related to Covid-19 will receive full (100%) pay for two weeks.
Employees who are experiencing Covid-19 like symptoms and are seeking a medical diagnosis will receive full (100%) pay for two weeks.
Employees who are caring for other individuals subject to (1) above or have been advised as in (2) above will receive two-thirds (2/3) of their pay.
Employees who care for their son(s) or daughter(s) whose school or place of care is closed or whose childcare provider is unavailable because of Covid-19 will receive two-thirds (2/3) of their pay for two (2) weeks.
Employees experiencing substantially similar conditions as specified by the Secretary of Health and Human Services but fall within (2) or (3) above probably are eligible to receive two-thirds (2/3) of their pay.

The above rules have been distilled from the proposed Federal Register. Given how quickly the regulations have been set forth, there could be differences between the actual law or modification of the regulations later on. In other words, the above explanation may not be final or precise.

The above rules have certain maximum daily and aggregate dollar amounts the employee can receive. The above rules are applicable to full-time employees. There are differing rules applicable to part-time employees.

The sick pay provisions of the law apply regardless of how long the employee worked for the employer. However, there are exemptions from the sick pay provisions. An employer can exclude emergency responders and certain healthcare workers.

An employer cannot require an employee to use company paid sick time before using this benefit.

A complicated answer applies to how a "stay-at-home" Order which constitutes as "quarantine" or "isolation" will be treated under the FFCRA. In all Pennsylvania Counties, many Pennsylvania employees of small companies are currently subject to a "stay-at-home" Order even if they are not infected by Covid-19. https://www.governor.pa.gov/wp-content/uploads/2020/03/03.23.20-TWW-COVID-19-Stay-at-Home-Order.pdf The FFCRA provides sick pay to those persons under quarantine or isolation because of an emergency order of federal, state, or local origin. It is this author’s contention that unemployment, not sick pay, is the route most Pennsylvania employees will need to take who are not sick or have been exposed, but subject to a "stay-at-home" Order. The answer differs if the reason for being home is related to the childcare provisions of the Act.

As far as the DOL interpretation of this provision, the federal government provides that a "stay-at- home" or "shelter" Order makes an employee eligible for sick pay. (See DOL FFCRA Frequently Asked Questions Response number 60) However, at the same time, employees will be not be covered if the Order makes the employer not have work for the employee. This would make the employee eligible instead for unemployment. This would currently make a "stay-at-home" Order very limited in application in Pennsylvania, where all counties are subject to the "stay-at-home" Order. However, persons who need to be home for childcare reasons (see above) would qualify for the sick pay.

Thus, under federal guidance, as originally happened in Pennsylvania, the employee who may be subject to a "stay-at-home" Order in one county could receive the sick pay if the employer, whose business is in another county that was not subject to the Order, was still open.

It is important to note that employers are being reimbursed with tax credits for employees who take the sick pay. If there is no work because of a "shut down" Order, the employee should be receiving unemployment benefits and not the sick pay. The DOL has made clear that it will not reimburse small employers with tax credits who should have paid unemployment. If an employee receives the benefits due to an employer’s mistake, that presents interesting questions, but this author is of the opinion the employer cannot recoup the payment.

As far as a Pennsylvania law relating to isolation and quarantine, the answer is probably not. Most of the limited legal commentators who have expressed an opinion have felt that their state’s laws define isolation or quarantine narrowly in terms of actual or potential exposure. An "isolation" Order usually occurs for someone infected by a disease and a "quarantine" Order is usually issued for an individual who was actually exposed to a disease. "Stay-at-home" or "shelter" Orders are typically viewed as an exercise of state power where there is not infection (needing isolation) or known actual exposure (known as quarantine).

Pennsylvania’s law at 35 P.S.C.S. 521.2 clearly defines isolation in terms of actual exposure. The definition of quarantine, while confusing, seems to define quarantine in terms of actual exposure. In this author’s view, the statute has some ambiguity, and it could be argued a "stay-at-home" or a "shelter" Order is a "modified quarantine" where sick pay could be taken. This author warns, however, that the answer is not clear and would have to be resolved by court interpretation. Moreover, the rights in this Act, including sick pay, can only be taken once.

It is important to highlight that the Governor’s "stay-at-home" Order does not apply to life-sustaining businesses. https://www.scribd.com/document/452553026/UPDATED-4-00pm-April-1-2020-Industry-Operation-Guidance. If you work for a life-sustaining business, you are not under a "stay-at-home" Order for the purposes of working and thus are not eligible for this benefit.

Moreover, the DOL has made it clear that employees who can work remotely may not be covered under all aspects of the "sick pay" provision. Remote working requires a separate look at how provisions in the law interrelate.

II. THE RIGHT TO PAID EMERGENCY FMLA LEAVE UNDER THE EFMLEA

It is easiest to think of the paid leave for EFMLEA as a leave for childcare related to the public health emergency created by Covid-19. The EFMLEA provides the right to be paid for leave to care for children, due to the coronavirus health emergency, whose (1) schools have closed or (2) whose childcare arrangements have ceased. An important qualification is that the eligible employee must not be able to work remotely.

Unlike the paid sick leave provisions, this law seems targeted at a longer-term problem of how to care for children of working parents when they need to be at home. The paid leave provisions can be more generous and provide up to 12 weeks of unpaid leave.

The regulations indicate this law applies to employees who have worked over 30 days.

The regulations provide that the first two weeks of leave will be unpaid, but the employees can substitute two weeks of sick leave under the EPSLA. After two weeks, eligible employees receive two-thirds of their regular pay for 10 weeks.

Like with the ESLPA, this law exempts certain emergency responders and healthcare workers.

The EFMLEA differs on the issue of concurrency. First of all, many employees receive 12 weeks of Family and Medical Leave Act (FMLA) leave. The regulations state that if an employee has already taken FMLA leave (say 6 weeks), their rights to EFMLEA leave is reduced (e.g., to the remaining 6 weeks). Furthermore, as with FMLA leave, the employee can elect to take, and the employer can require, the employee to concurrently use vacation, personal leave, or paid time off. If that occurs, the employee is paid pursuant to the employer’s pre-existing plan or policy, which would mean the employee would normally receive full pay (100%). This is the way FMLA is administered normally.

The Department of Labor regulations anticipate that there will be "in-between" situations, where a parent needs to stay at home, can work remotely, but cannot put in a full day of work because of childcare issues. For instance, an employee who normally could work remotely (telecommute) may now have 2 young children that need to be cared for at home and could not possibly work an 8-hour day or work 8 hours during regular hours.

The regulations anticipate that the employer and employee will try to work things out. One suggestion in the regulations is a flexible schedule where the employee works 8 hours a day but breaks up the day for childcare needs. The regulations also anticipate that intermittent EFMLEA leave will also be considered. Intermittently means in separate periods of time, rather than all at once. For instance, in that 8-hour day, the employee could work 4 hours a day and receive paid leave for 4 hours a day. This would not affect the employee’s total right of 10 weeks of leave.

The DOL regulations indicate that an employer does not have to agree to proposed intermittent leave. This may cause problems for employees where the employer is not easy to deal with or management has a personal issue with the employee. It is this author’s opinion that an employer that does not agree could wind up in a worse situation. Employees can assert they cannot work remotely because of childcare reasons and assert their full rights to leave under the Act.

It may be advisable for an employee to work out their situation with each employer on their own before they seek representation, but if there is a problem, legal representation may be prudent to show the employer you wish for your concerns to be treated seriously. The tenor of the regulations protects employees who invoke their right to intermittent leave from discrimination and retaliation.

It is important to document the agreement. The DOL regulations state that the employer and employee may memorialize their agreement in writing, but a clear and mutual understanding is enough. A formal written agreement best protects an employee’s rights. We would advise an employee who wishes intermittent leave to at least document the nature of the arrangement in an e-mail.

Many provisional answers to an employee’s questions are provided in temporary regulations put forth by the Department of Labor which are cited below. However, a significant caveat is regulations are not the law but interpretations of the law. They are guidance to what a law means, and importance guidance, but can be changed or overruled later by courts.

III. CONCLUSION

At Wusinich, Sweeney & Ryan, LLC, we are dedicated to helping employees obtain justice in the work place. We help employees understand and navigate the often difficult-to-understand areas of the law.

If you think you need advice, desire an attorney to assist you with FFCRA issues or with your employer, or think you have been retaliated against because you exercised rights under the FFCRA, call Wusinich, Sweeney & Ryan, LLC at 610-594-1600 or write us at [email protected].

This explanation was meant as a general guide only. This law is complex and specific questions should be addressed to a knowledgeable attorney.

Here is a link to the Department of Labor web site that will more fully explain the contours of what is offered: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.

Here is a very full explanation of the law as interpreted by the Department of Labor in temporary regulations: https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act.

Here is a Department of Labor document that provides answers to Frequently Asked Questions (FAQ): https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#53.

The United States Chamber of Commerce also has provided a readily-understandable explanation of the law: https://www.uschamber.com/co/start/strategy/families-first-coronavirus-response-act-guide.

ⁱ "Isolation" is defined in the law as follows:

(e) Isolation. The separation for the period of communicability of infected persons or animals from other persons or animals in such places and under such conditions as will prevent the direct or indirect transmission of the infectious agent from infected persons or animals to other persons or animals who are susceptible or who may spread the disease to others.

ⁱⁱ "Quarantine" is defined in Pennsylvania law as follows:

i) Quarantine. The limitation of freedom of movement of persons or animals who have been exposed to a communicable disease for a period of time equal to the longest usual incubation period of the disease in such manner as to prevent effective contact with those not so exposed. Quarantine may be complete, or, as defined below, it may be modified, or it may consist merely of surveillance or segregation.

(1) Modified quarantine is a selected, partial limitation of freedom of movement, determined on the basis of differences in susceptibility or danger of disease transmission, which is designed to meet particular situations. Modified quarantine includes, but is not limited to, the exclusion of children from school and the prohibition or the restriction of those exposed to a communicable disease from engaging in particular occupations.

(2) Surveillance is the close supervision of persons and animals exposed to a communicable disease without restricting their movement.

(3) Segregation is the separation for special control or observation of one or more persons or animals from other persons or animals to facilitate the control of a communicable disease.

At Wusinich, Sweeney & Ryan, LLC, we are pleased to help the Pennsylvania employee through this difficult time.

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Am I eligible for sick pay or paid leave under the recently passed Families First Coronavirus Response Act (FFCRA)?

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