Provide FFCRA Leave Even in Negative Cases?

Question

We have many employees who have figured out that some doctors will write 14 day quarantine notes, even after they test negative for COVID. The employee goes to the provider, tells them they've been exposed to COVID, the doctor tests them, they come back negative, but then the doctor writes a 14 day quarantine order anyway and the employee submits that for FFCRA sick time. I don't see a way around this due to how the law is written, but it is getting very over-abused. Are we correct that we must provide the FFCRA leave whenever a doctor note advises it even in negative cases?

Answer

As you are likely aware, the federal Families First Coronavirus Response Act (FFCRA) provides up to two weeks/80 hours of paid time off (up to certain maximum amounts) if an employee is unable to work or telework because he or she:

  1. is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. is experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. is caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. is caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
  6. 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.

Paid sick leave, when an employee qualifies for it, is paid at either 100% or 2/3 of the employee's regular rate of pay, up to $511 per day or $200 per day, respectively, depending upon the reason for the time off. An additional ten weeks of leave can be taken in connection with reason number 5 above for employees who have at least 30 days' tenure with the employer, as an expansion of the federal Family and Medical Leave Act. Please see the Department of Labor's FAQ resource relative to the FFCRA at Families First Coronavirus Response Act: Questions and Answers for more information on FFCRA obligations.

The FFCRA Regulations are available at 29 CFR Part 826 Paid Leave Under the Families First Coronavirus Response Act and at section 826.20(a)(3), they clarify reason number 2 above (i.e., advised by a health care provider to self-quarantine), which appears to be the reason for which the employees in question are seeking paid sick leave benefits under the Act, specifically as follows:

"An Employee may take Paid Sick Leave for [this] reason ... only if:

  1. A health care provider advises the Employee to self-quarantine based on a belief that —
    1. The Employee has COVID–19;
    2. The Employee may have COVID– 19; or
    3. The Employee is particularly vulnerable to COVID–19; and
  2. Following the advice of a health care provider to self-quarantine prevents the Employee from being able to work, either at the Employee’s normal workplace or by Telework."

To the extent an employee meets this criteria, then he or she is arguably entitled to the paid sick leave benefits provided under the FFCRA. We recognize that this provision can potentially be subject to abuse if, as you describe, employees seek to secure a COVID-19 test (whether or not they have symptoms or have faced a known exposure) and are then advised by the health care provider who administered the test to quarantine for 14 days (or, presumably, until a negative result is returned, whichever is first, although it seems that in some cases these orders are being written subsequent to the negative result). To the extent an employee provides sufficient notice to the employer (discussed below) and demonstrates qualification, we are not aware that the employer can seek to deny benefits based solely on a suspicion that such employee has undertaken these steps intentionally to take advantage of the law and in order to enjoy two weeks of paid time off from work. That said, if employees can telework, the FFCRA benefits arguably would not apply.

In seeking leave under the FFCRA, note that an employee need not provide much information, and can do so verbally. The DOL summarizes the employee notice obligation in this regard as follow:

"When requesting paid sick leave or expanded family and medical leave, you must provide your employer either orally or in writing the following information:

  • Your name;
  • The date(s) for which you request leave;
  • The reason for leave; and
  • A statement that you are unable to work because of the above reason.

If you request leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally provide the name of the health care provider who gave advice." See questions 15 and 16 at the first FAQ link above.

Finally, we note that at question 91 of its Frequently Asked Questions regarding the FFCRA (first link above), the Department of Labor makes clear that an employer is not prohibited "from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child." To this end, if the employer learns that an employee has knowingly and intentionally made a misrepresentation, to our knowledge the employer is not required to provide statutory benefits in such situation. That said, denial of benefits can expose the employer to liability, so the employer must ensure it has demonstrable evidence of fraud, and has otherwise fully complied with its statutory obligations, before it arrives at any such conclusion. Where employees legitimately secure a COVID-19 test and have a valid quarantine order from a healthcare provider, it may be difficult for the employer to successfully demonstrate that the benefits were secured under false pretenses (even if the employer suspects the same). Keep in mind that benefits paid under the FFCRA are eligible for reimbursement through tax credit (see COVID-19 Related Tax Credits FAQS for guidance on substantiating documentation to secure such credit). As well, employees who deplete paid sick leave for one purpose are not entitled to additional paid sick leave benefits under the Act should another qualifying reason arise later.

We provide this guidance with the caveat that it is based on what information has been made available concerning the FFCRA to date. Given how new it is, there is no case law to review to determine how the law is to be applied that would allow for an otherwise more detailed analysis. As well, it is our understanding that Congress has challenged the DOL's interpretation of the FFCRA, which may thus call into question whether the DOL's guidance will ultimately prove to be viable. The best way to stay up to date on this topic is to check back in at the DOL's website regarding COVID-19 and the American Workplace regularly at and through your HELPLINE portal where we continue to post additional information as it becomes available.Logo  

Published Date:August 18, 2020

Categories: HR Question of the Month