Employees entitled to FFCRA paid leave from work, but only when there is work available

published in McAfee & Taft EmployerLINC | November 16, 2020

Believe it or not, 2020 is nearly over. (Good riddance, right?) While the average Oklahoma workplace continues to look and function differently than ever before, some things never change. Today’s high will be nearly 70 degrees. None of us will blink an eye if tomorrow’s high is 30 degrees cooler. Our weather is unpredictable at best, and the possibility of inclement weather closures will be with us for the rest of 2020. In addition, the holidays are upon us. Many workplaces will close for some period of time over Thanksgiving and Christmas. At the same time, the number of confirmed COVID cases in our state continues to rise, and our schools continue utilize alternative learning methods and schedules. As a result, an increased number of employees will likely be absent from work for COVID-related reasons during the coming weeks.

The Families First Coronavirus Response Act provides paid leave for employees who are (1) subject to federal, state or local quarantine or isolation orders, (2) following the advice of a health care provider to self-quarantine due to COVID-19, (3) experiencing symptoms consistent with COVID-19 and seeking a medical diagnosis, (4) caring for an individual subject to a quarantine or isolation order or a directive to self-quarantine, and/or (5) caring for a child whose school or place of care is closed due to COVID-19 related-reasons.

DOL: FFCRA paid leave subject to work availability

The U.S. Department of Labor promulgated regulations to assist with interpretation and implementation of the FFCRA. One of those regulations, 29 C.F.R. § 826.20, specifically stated that employees subject to a quarantine or isolation order, employees caring for an individual subject to a quarantine or isolation order, and employees caring for a son or daughter because of a COVID-related closure were not eligible for paid leave if the employer did not have work available for those employees to perform.

This regulation, along with others, was challenged by the State of New York. In the course of that litigation, the Department of Labor argued this work-availability requirement should be interpreted to apply to types of FFCRA leave, not just those specifically addressed in the regulation. The federal court disagreed, and in August vacated the so-called “work availability” requirement, finding it was inconsistent with the FFCRA itself. Although this decision is not binding upon Oklahoma employers, it cast doubt upon this interpretation of the FFCRA.

Regulation revised and reaffirmed following legal challenge

The Department of Labor revised Section 826.20 in response to this ruling to “reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.” Revised Section § 826.20 became effective September 16, 2020. According to the Department of Labor:

“In the FFCRA context, if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave – perhaps the employer closed the worksite (temporarily or permanently) – that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.” 

Impact on affected employees seeking paid leave

Why does this matter? Under the revised regulation, an employee would not be entitled to paid leave under the FFCRA leave if his employer is forced to close the workplace for one or more days due to inclement weather. In this situation, the employee would not have been able to work, regardless of any COVID-19-related reason. Similarly, an employee may not be entitled to FFCRA paid leave during any days where a facility is closed in observance of any upcoming holiday. However, if the employer’s policy provides holiday pay to its employees on these days, it must consider whether such benefits would be available to an individual who is out on FFCRA leave. If the policy allows for persons out on various types of leave (i.e., FMLA, etc.) to receive holiday pay, individuals on FFCRA paid sick leave may also be entitled to such earnings, although such earnings would not count against the FFCRA entitlement.

A final note: as enacted, the Families First Coronavirus Response Act remains in effect only through December 31, 2020. Your guess is as good as mine whether the FFCRA will be extended into 2021. We will continue to monitor any developments here.