Emergency Paid Sick Leave Does Not Apply to Employees Who Shelter in Place

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Precautionary protective orders, including shelter in place orders, are not a qualifying reason for Emergency Paid Sick Leave Act ("EPSLA") benefits set forth in the Families First Coronavirus Response Act.

The first provision of the EPSLA states that:

"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 . . ."

The Centers for Disease Control and Prevention ("CDC") defines quarantine and isolation as:

Quarantine: "[S]eparating and restricting the movement of individuals who are reasonably believed to have been exposed to a communicable disease, but are not yet ill."

Isolation: "[S]eparating and restricting the movement of individuals who have been exposed to a communicable disease and are symptomatic from those who are not sick."

In January 2019, the CDC provided additional guidance when they released National Standards for State, Local, Tribal, and Territorial Public Health. There, the CDC specifically differentiated between "isolation," "quarantine," and "[p]recautionary protective behaviors, such as personal decontamination, shelter in place, and face mask in special situations during severe pandemics."

On January 8, 2004, after the SARS outbreak, the CDC offered more thorough definitions of the terms isolation and quarantine in a Lessons Learned Guidance. Again, isolation was defined to include ill individuals and quarantine was defined to include individuals "believed to have been exposed to infection." In the aforementioned guidance, the CDC explained that quarantine may include a range of actions from those taken on a "voluntary basis" (e.g., the CDC asking recent travelers to stay home for 14 days) to a cordon sanitaire -- a form of contagion containment where a barrier is made around a geographic zone with strict enforcement to prohibit movement into and out of the area (e.g., the actions that took place in Wuhan, China). The term shelter in place, however, was not included within the definition of isolation or quarantine.

In addition, when the Families First Coronavirus Response Act was first introduced to Congress, the relevant portion of the bill stated:

"Emergency paid leave benefits are available when "[t]he individual is under quarantine (including self-imposed quarantine), at the instruction of a health care provider, employer, or a local, State, or Federal official, in order to prevent the spread of COVID-19."

"Limitation: "No calendar day may be treated as an emergency leave day with respect to an individual if the individual--(ii) was eligible for unemployment compensation for the week in which such day occurs."

The legislative history demonstrates: (1) the legislature broadened the definition of EPSLA to include those in isolation but chose not to include precautionary measures, such as shelter in place orders, and (2) the legislative intent is to provide unemployment insurance, when applicable, over paid sick leave.

Unemployment insurance is available to workers who have experienced a loss or reduction in hours; therefore, employees who have experienced a loss of hours would be eligible for unemployment insurance, not paid sick leave.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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