Q&A: New federal leave related to COVID-19 doesn’t apply to layoffs

Question: If we have to shut down our business because of a government mandate related to COVID-19, will our workers be eligible for the new federal emergency paid sick leave and paid emergency family and medical leave?

Answer: Probably not, based on the text of the Families First Coronavirus Response Act (FFCRA), although we’re still awaiting regulations, which could alter that assessment. As we previously reported, the new law applies to employers with fewer than 500 employees. The law will take effect April 1, 2020. It requires covered employers to provide up to two weeks of emergency paid sick leave (EPSL) in specific listed scenarios related to COVID-19, plus up to an additional 10 weeks of paid emergency family and medical leave (EFMLA) when a child’s school or daycare is unavailable due to a public health emergency. One of the EPSL scenarios is when an “employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.” However, the CDC definitions of “quarantine” and “isolation” are medical directives to individuals who have been exposed or who have been ill, which don’t seem relevant to a general order or decision to shut down a workplace. The only other possible EPSL scenario is a catch-all category in which an employee is experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. We’ll monitor the agencies’ issuance of any regulations or guidance for clarification on this issue. Until then, our assessment is that both the EPSL and the EFMLA only apply while an employee is taking a leave of absence from work for personal reasons. If the business shuts down and the company doesn’t continue wages, employees can apply for unemployment benefits.

The answer may be different under state or local paid sick leave laws. Paid sick leave laws in Oregon and Washington as well as paid sick leave ordinances in San Diego, Seattle, and Tacoma all grant the right to use paid sick leave when an employee’s workplace is closed due to a public health emergency. See our Legal Guides, Paid Sick Leave Laws: California, Oregon, Washington, and Federal, Paid Sick Leave Laws: California Local Ordinances and Paid Sick Leave Laws: Washington State and Local Ordinances for help. Members: contact your Vigilant Law Group employment attorney with questions.