This post was updated August 6, 2020 to reflect the most recent US DOL guidance. Updated information is bolded below.
States around the country are implementing travel-based quarantines for individuals entering their states, in the hopes of mitigating the spread of COVID-19 within their borders.
Employers are asking: Are employees entitled to emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA) in the event of a quarantine due to recent travel?
If the travel quarantine is required by a “Federal, State, or local quarantine or isolation order related to COVID-19 ” the employee likely is entitled to emergency paid sick leave under the FFCRA. Under this Act, individuals who are unable to work and are subject to a local, State, or Federal quarantine order are allowed up to 80 hours of paid sick leave at their regular rate of pay up to a cap of $511.00 daily or $5,110.00 for the duration of the leave period. However, individuals who have the ability to telework do not qualify for emergency paid leave under the Act. Additionally, individuals who have already exhausted their 80 hours of paid sick leave under the FFCRA are not eligible for any additional emergency paid sick leave under the Act, regardless of qualifying reason.
The U.S. Department of Labor (US DOL) has not published guidance on the topic, but it is anticipated that this information will be forthcoming in the form of additional Questions and Answers previously released by the US DOL on July 20, 2020. This resource continues to be updated as new developments arise, so please be sure to check back periodically for the most current information.
The US DOL's Massachusetts office has advised our compliance team that it is recommended for employers to provide emergency paid sick leave for eligible employees who are the subject of an order for quarantine for any reason. This comports with the plain language of the Act, and aligns with previous US DOL recommendation that eligibility for paid sick leave under the Act is predicated on the quarantine directive being mandated or ordered by a Federal, State or local authority, rather than simply suggested, recommended, or advised. In most states, the quarantine order is effectively ended after 14 days of quarantine, or upon receiving a negative COVID-19 test result within a specified time frame. The US DOL has also advised CheckWriters that employers are permitted to require employees subject to a mandatory travel quarantine to submit to COVID-19 testing in order to reduce the length of the quarantine period and to enable the employee to return to work.
May employers dissuade or discourage personal travel to high-risk states?
Many state quarantine orders permit employers to actively discourage their employees from personal travel to a state that would require a quarantine period upon their return.
In some jurisdictions, states have enacted parallel or similar state-based paid sick or family leave as a result of COVID-19 or the declaration of a state of emergency. Therefore, states with parallel or similar leave legislation have greater latitude in restricting employee eligibility for state-based leave based upon personal travel. For example, in New York, by recent executive order, individuals who engage in nonessential travel to high-risk states are ineligible for paid sick leave under the New York paid sick leave law. However, as long as the employee has met the eligibility requirements under the FFCRA, the employee would likely still be entitled to federal emergency paid sick leave.
Next steps for employers
As these travel orders are constantly changing, should an employer provide paid sick leave under the Act based upon a mandatory quarantine order, it is advisable to retain a copy of such order with the employee’s request for leave and other verifying information to ensure the employer meets the IRS substantiation requirements to claim federal tax credits for qualified leave wages.
To aid employers in their COVID-19 compliance measures, CheckWriters has developed a COVID-19 electronic Health Declaration tool. The tool is accessible within the CheckWriters Employee App, and allows employees to complete a simple self-screen relative to new symptoms and potential exposure. You can learn more about the electronic Health Declaration here >>
This blog post is for informational purposes only and should not be construed as legal advice. It is always advisable to consult counsel relative to your specific situation and jurisdiction.