COVID-19 & Your Business: Frequent Questions

When is an employee eligible for paid sick leave under the EPSLA because he or she is “subject to a federal, state, or local COVID-19 quarantine or isolation order”? (29 C.F.R. §§ 826.10, 826.20(a)(2))

The DOL’s regulations specify that a “quarantine or isolation order” includes quarantine, isolation, containment, shelter-in-place, and stay-at-home orders issued by any federal, state, or local government authority. The regulations clarify that an employee is only entitled to take leave under the EPSLA for this qualifying reason if, but for being subject to the order, the employee would be able to perform work or telework that is otherwise allowed or permitted by the employer. If an employer does not have work for an employee as a result of a quarantine or isolation order (or other circumstance), the employee is not entitled to take leave for this qualifying event. If an employer has work and the employee is able to do it by teleworking, then the employee is not entitled to leave for this qualifying event unless there are extenuating circumstances (e.g., a power outage) preventing the employee from performing that work.

To clarify this point, the DOL offered the following example:

If the closure of a coffee shop was substantially caused by a stay-at-home order because its customers are being required to stay at home, the reason the coffee shop cashier is unable to work would be because those customers were subject to the stay-at-home order—not because the cashier was subject to the stay-at-home order. Also, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier was subject to the order. A downturn in business due to COVID-19 means the employer would no longer have work for its employees, so the cashier who is subject to the quarantine or isolation order would not be able to work even if he or she were not required to comply with the quarantine or isolation order—the cashier’s inability to work is not due to his or her need to comply with the order, but rather due to the closure of the employer.

On August 3, 2020, the United States District Court for the Southern District of New York held that the DOL “work availability requirement” was invalid. Read more about the decision.

Before denying leave on the basis of a lack of work availability, employers should consult counsel.

Last updated August 4

These materials are made available by Jackson Walker for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.