Image by Alexas_Fotos from Pixabay
While I sit here and eat a little crow, you be on the lookout for pigs flying.
Initially, I had planned to offer some employment law takes on ViacomCBS dropping Nick Cannon over anti-semitic remarks. I think I’ll get to that tomorrow.
Today, I want to thank a few fellow members of the Pennsylvania Bar who pointed out a fatal flaw in my recent post about the Commonwealth of Pennsylvania Department of Health’s “COVID-19 Information for Travelers.” That’s where I said that the DOH’s 14-day quarantine “recommendation” for individuals returning to Pennsylvania from COVID-19 hotspots was not a State quarantine order under the Families First Coronavirus Response Act.
I was wrong. Here’s why…
The Department of Labor’s FFCRA regulations (here) take a broad view of a quarantine order … beyond just an “order”:
Subject to a quarantine or isolation order. For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them. (my emphasis)
Since the DOH is recommending (i.e., advising) that employees returning from COVID-19 hotspots quarantine for 14 days, the DOL regulation is on point.
Additionally, the DOH published this list of Travel Recommendations Frequently Asked Questions a few days ago. Although the DOH confirms that the guidance is a recommendation and not a requirement, the DOH is encouraging employers to review the FFCRA eligibility criteria and provide flexible leave and work from home policies to accommodate the recommendation. The DOH also raises the possibility of FFCRA leave in situations where: (1) the employer requires the employee returning to PA from out-of-state to quarantine for 14 days consistent with the DOH guidance; or (2) the employer tries to force the returning employee to report to work.
Thus, it appears that an employee who comes back to Pennsylvania from Delaware, for example, can request and obtain FFCRA leave if s/he can’t telework because that employee is subject to a State quarantine order. (Certainly, if a doctor also recommended quarantine, that employee would be eligible for FFCRA leave too.)
If you operate in a state that has offered similar “guidance,” think twice before denying a request for FFCRA leave. I’m glad that I did.