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COVID-19: Social Distancing and Paid Sick Leave

By: Kevin Brady, Esq.

The national shift to social distancing has effectively changed the way almost all of us go to work. For some, rather than physically report to an office, we simply wake up (hopefully followed by some coffee), and get the day going. The daily “Good Morning” from a coworker is sent over skype, the “Boomers” are now masterful “Zoomers”, and many talented folks juggle the full-time job of parenting while somehow managing their full-time work responsibilities each day. For some (very brave) others, such as nurses and grocery store employees, the way they report to work may not have necessarily changed, but the workplace they go to has taken on an entirely new light.

While it has been a significant shift, those who are able to work remotely are certainly lucky to have the opportunity to do so. Shelter-in-place orders, albeit an absolutely necessary measure to flatten the curve of COVID-19, have had a significant impact on how people work and has unfortunately resulted in a lack of “work” for many.

In an effort to protect employees during these difficult economic times, The Families First Coronavirus Response Act (FFCRA) was signed into law. The new law provides new paid leave entitlements intended to protect employees who are directly impacted by COVID-19. The Emergency Paid Sick Leave Act for example, requires employers to provide up to 80 hours of paid leave when employees go on leave due to certain qualifying circumstances, such as experiencing symptoms of COVID-19 or being advised by a healthcare provider to self-quarantine, among others. One particular circumstance, which has caused a rash of confusion between employers and employees alike, relates to shelter-in-place orders. Under the EPSLA, employees who are unable to work as a result of a federal, state, or local quarantine order are entitled to emergency paid sick leave.

As Congress expedited the drafting, and passing, of the FFCRA, some of its provisions were quite confusing and required further clarification to comprehend the intent behind the language. Luckily, the U.S. Department of Labor (DOL) has issued guidance to help clarify some of the confusion surrounding the EPSLA in particular. The guidance provides that individuals unable to work as a result of a shelter-in-place order are only entitled to leave if they are 1) actually unable to work or telework (meaning they cannot leave their homes to travel to the workplace and cannot telework because of the nature of the position or the required access to technology) and 2) that the employer actually has work for that individual to do (the business operations have continued and the employer has work to be done by the employee). While this application of the law may seem obvious, it is actually quite nuanced and difficult to determine whether an employee is actually eligible for paid leave, and possible even more difficult to determine what their rate of pay should be during said leave. For more information on these nuanced questions, see the DOL’s FAQ page.

As the COVID-19 situation continues to develop, we anticipate that further guidance on how these entitlements are meant to apply will be issued; the DOL has already updated the FAQ portion of their website several times since the FFCRA’s enactment. Given that the situation is fluid and that it is unclear what, if any, steps will be taken next to protect the economy and the workforce, we are interested to see how leave entitlements under the FFCRA will be applied in practice.