For California businesses impacted by the current Shelter In Place Orders
California Attorneys based in San Francisco a frequent question that we are receiving from our employer clients during this challenging time relates to whether or not employers are required to provide an additional two weeks of compensation to furloughed workers if the employer’s business is classified as ‘Non-Essential’ and is thus closed to the public under a general city, county or state shelter in place order.
This question arises due to the implementation of the Families First Coronavirus Response Act (“FFCRA”) and specifically Section 5102(a) (1) of that act.
Section 5102(a) (1) provides one of a number of criteria under which an employer may be required to provide up to 80 hours of additional paid sick leave, separate and apart from regular accrued leave, for employees who are unable to work due to a Coronavirus related absence.
The specific language of Section 5102(a)(1) states one of the qualifying bases upon which an employee would be eligible for this additional extended leave, providing that:
“(a) In General–An employer shall provide to each employee employed by the employer-paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because: (1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.”
Due to the current shelter-in-place order, this provision has caused confusion for many California employers, whose businesses are closed under the current order and who do not have work to give their hourly employees, either because the type of work in the business cannot be practically done remotely, or because there simply isn’t work to give while the business must remain closed.
It is recognized that the current legislation is unclear on this point and does not specifically address the issue in the context described above. It is further recognized that this is a developing issue that may rapidly change and must, therefore, be monitored regularly by employers.
However, in reading the current language of Section 5102(a)(1) and related provisions of FFCRA and other related defined terms it does not appear that this section was intended to cover employers and employees impacted by the general shelter-in-place orders alone.
A key to this interpretation may be found in a subsequent sentence of FFCRA provided at Section 5102(a) (4) which provides that another class of qualifying employees are those where: “(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).” (emphasis added).
The specific use of the word “caring” in this part of Section 5102(a) specifically relates to employees who qualify under the preceding provision of Section 5102(a) (1), and strongly suggests that references to employees unable to work because of a ‘quarantine’ or ‘isolation’ order addressed by that provision, means employees who are actually in quarantine or isolation to due exposure or likely exposure to the Coronavirus, and not employees who are simply unable to work because their employer’s business is closed pursuant to a general shelter in place order.
This view of the language is further bolstered by the fact that the extended benefits required by Section 5102(a)(1) only run for 80 hours for full-time employees or two weeks.
Given that the quarantine and/or isolation periods for persons exposed or likely exposed to the present Coronavirus is 14 days per CDC and numerous other guidelines, it is reasonable to conclude that this is the situation that this portion of the legislation is intended to address, and not more general business closures, which could and indeed already are lasting far longer under the shelter in place orders.
Furthermore, it is notable that the CDC, in the context of infectious diseases, defines ‘quarantine’ as the ‘separation of a person or people known or reasonably believed to have been exposed to a communicable disease, and ‘isolation as the separation of a person or people known or reasonably believed to have been infected by a communicable disease.’
he shelter-in-place orders in California deal far more generally in terms of enforcing social distancing, restricting movement, and taking what are widely recognized as necessary precautions for preventing unchecked community spread of Covid-19.
In other words, the shelter place orders and resulting business closures are preventative measures, They are not specific responsive measures to specific persons who have been exposed to Covid-19 or who may have contracted it, and as such, are unable to work.
Accordingly, it is the view of our firm that California employers who are currently subject to business closures under the shelter-in-place requirements and who are not otherwise able to keep their employees working during this period of time are not required by FFCRA to make blanket additional leave pay to workers who are furloughed.
This being stated, the legislative response and resulting guidelines to address the global pandemic are evolving on a near-daily basis and no two employer-employee situations are exactly alike.
We, therefore, urge caution during this time and strongly suggest that any employer or employee trying to make a decision regarding this or any other work-related matter consult an attorney to review and discuss their specific situation before doing so.
The lawyers at Sutter Law are experienced in advising upon such matters and if you have any questions or need assistance, please do not hesitate to contact us.
