The Department of Labor recently implemented regulations regarding the Families First Coronavirus Response Act (FFCRA) and the application of Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA).
As expected there remains much confusion on the application of these benefits to employees in varying scenarios. The below flowcharts were created to provide visual guidance in construing how these benefits are generally applied and when employees may be eligible. It is our hope that the flowchart will provide some basis clarification while generating discussion in varying phases to better understand how these laws are meant to operate in the workplace. Be advised the flowchart cannot anticipate every scenario and is by no means to be construed as legal advice. For legal advice regarding the application of the FFCRA, EPSL and the EFMLA please contact legal counsel so that your situation can be reviewed an analyzed accordingly.
For reference, the six qualifying reasons applicable to taking EPSL are as follows:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Under the FFCRA, the sole qualifying reason for taking EFMLA is as follows (which is the same as number 5 above):
- If the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
*** The Department of Labor has stated that the “FFCRA and these regulations encourage employers and employees to implement highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to family and other responsibilities . . . For example, an employee may agree with an employer to perform telework for COVID-19 related reasons on the following schedule: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. This allows an employee, for example, to help teach children whose school is closed or assist the employee’s parents who are temporarily living with the family, reserving work times when there are fewer distractions.” Employers and employees should work closely one another and seriously evaluate if teleworking is feasible for any particular position and what the guidelines of that arrangement might be. An employee stating he or she simply does not desire to telework when such work is available may not be sufficient to invoke ESPL or EFMLA. Each situation should be reviewed on a case-by-case basis.
Flowchart to Help you Apply Guidelines
Click this link to view a PDF version of a flowchart showing the application of emergency paid sick leave under the FFCRA.
