Here’s the scenario…it may be familiar to your company
We have a team member who left early last Tuesday stating her spouse tested positive for COVID. She was tested, and her results were negative.
She states she won’t be back to work until next Tuesday. She has no PTO to use.
Are we obligated to pay her 2/3 of her pay for the time she missed, and not require proof of a positive test for her spouse? What other documentation do we require?
We reached out to our partners at ThinkHR for some guidance
Based on the information provided, your employee may be entitled to FFCRA emergency paid sick leave (EPSL) depending on the reason why she is unable to return to work at this time. For example, if your employee is remaining home to care for her sick spouse then she would be eligible for EPSL at two-thirds her regular rate.
But wait…there’s more:
If she is unable to work because a health care provider told her to quarantine for a specified period, then she would be eligible for EPSL at 100% of her regular rate. An employee is entitled to EPSL if they are unable to work for any of the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine because of COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis from a health care provider;
- The employee is caring for an individual (immediate family member) subject to an order described in bullet 1 or self-quarantine as described in bullet 2;
- The employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
- The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Here’s what you can and can’t do:
You may not ask the employee for her spouse’s COVID-19 test results (nor her own test results) in order to certify her need for paid leave. We have created a sample FFCRA Leave Request Form that asks for all the documentation required to provide an employee paid leave under the FFCRA. An employee is required to provide documentation containing the following information prior to taking EPSL:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave; and
- Oral or written statement that the employee is unable to work because of the qualified reason for leave.
To take paid sick leave because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, an employee must also provide the name of the health care provider who advised them to self-quarantine.
To take paid sick leave because the employee is caring for an individual (immediate family member) subject or advised to quarantine or isolation, an employee must also provide either:
- The name of the government entity that issued the quarantine or isolation order to which the individual being cared for is subject; or
- The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.
For detailed information on the Families First Coronavirus Response Act (FFCRA), please see our FFCRA Guidance. The Department of Labor released detailed FAQ guidance employers on administering leave under the FFCRA, which we strongly recommend that you review here: DOL FFCRA FAQ
Update: After our original post…a reader had asked this question.
If the employee’s job can be remotely from home, do these rules still apply?
If the employee is indeed able to work remotely from home, meaning the time to stay home to care for her spouse with COVID-19 does not prevent her from teleworking, the employee would then not meet the qualification for the 2/3 pay under the EPSL.
When am I eligible for paid sick leave to care for someone who is subject to a quarantine or isolation order?
You may take paid sick leave to care for an individual who, as a result of being subject to a quarantine or isolation order (see Question 53), is unable to care for him or herself and depends on you for care and if providing care prevents you from working and from teleworking.
Furthermore, you may only take paid sick leave to care for an individual who genuinely needs your care. Such an individual includes an immediate family member or someone who regularly resides in your home. You may also take paid sick leave to care for someone if your relationship creates an expectation that you would care for the person in a quarantine or self-quarantine situation, and that individual depends on you for care during the quarantine or self-quarantine.
You may not take paid sick leave to care for someone with whom you have no relationship. Nor can you take paid sick leave to care for someone who does not expect or depend on your care during his or her quarantine or self-quarantine.