Wednesday, April 1st, 2020

New DOL Regulations Address Loose Ends Regarding Federal COVID-19 Benefits

Today, the U.S. Department of Labor (DOL) issued temporary rules pertaining to the Families First Coronavirus Response Act, which addresses, among other items, benefit time through the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLEA).

A major clarification in the rules addressed the first of the six qualifying reasons for EPSL, which is when an employee “[i]s subject to a federal, state or local quarantine or isolation order related to COVID-19.” The DOL clarified that a statewide shelter in place/stay at home order, such as the Illinois Governor’s Order now extended through April 30 (Order), is an intended quarantine or isolation order. So generally, an employee who is not able to report to work because of the Order can receive EPSL.

The DOL further clarified that eligibility is based on “whether the employee would be able to work or telework ‘but for’ being required to comply with [the Order].” The DOL applies the “but for” test narrowly, holding that the specific reason an employee is not able to work must be that: (a) there is work for the employee to do; (b) the employee cannot legally report to work due to being required to stay at home; and (c) the employee cannot perform the work from home.

The DOL’s interpretation specifically excludes an employee who has no work to perform at their regular job from receiving EPSL, even if the reason for lack of work is COVID-19 related. For example, if a recreation center is closed due to the Order, then an employee who sells concessions at the center is not eligible for EPSL because there are no concessions to sell, regardless of the fact the employee may be subject to the stay at home Order, and regardless of the fact that the recreation center is closed due a COVID-19 reason.

By contrast, an administrative assistant who is deemed to be a nonessential employee by a municipality, would seemingly be eligible for EPSL, if the employee is not able to work from home. This is because there is work for the assistant to do, even if it is not “essential” under the Order, but the assistant is not legally able to report to work because of the stay at home Order. If, however, the assistant is able to work remotely, then the EPSL would not be available because the assistant is not restricted from working.

Another clarification is for the third qualifying reason for EPSL, if the employee “[i]s experiencing COVID-19 symptoms and is seeking a medical diagnosis.” The rules state that: “an employee experiencing COVID-19 symptoms may take paid sick leave [] for time spent making, waiting for, or attending an appointment for a test for COVID-19. But the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.” The DOL further states that an employee may remain on EPSL while waiting for test results, and that an employee who is not eligible for testing would be eligible under the second qualifying reason if the employee “is advised to self-quarantine” by a health care provider.

The DOL also narrowed a problematic qualification for EPSL if an employee is “caring for an individual subject to a quarantine or isolation order.” Questions arose as to whether an employer would have to pay an employee EPSL to take care of a complete stranger. The rules now require that the previously undefined “individual” must be “an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.”

The DOL’s rules are 124 pages and address several other subjects, such as documentation to substantiate qualified leave, which we will address in a forthcoming issue. As a reminder for local government purposes, the IRS requirements to receive tax credits for paid benefits under EPSL and EFMLEA are not relevant, because public bodies are currently excluded from receiving tax credits.

Lastly, please keep in mind that the legislation and rules related to COVID-19 are rapidly evolving. Even the DOL’s newly issued rules may change significantly, so be aware that any reference materials may become outdated in a matter of weeks or even days.