Update: EPLSA and Shelter in Place Order - American Society of Employers - Anthony Kaylin

Update: EPLSA and Shelter in Place Order

After the publication of last week’s article, which was written before temporary regulations by the U.S. Department of Labor were published in the Federal Register on April 1, it appears that the answer to the question – Will Governor Whitmer’s Executive Order Requiring Shelter in Place Trigger the Emergency Paid Sick Leave Act (EPLSA)? – is now yes. These temporary regulations are effective April 1 and last until December 31, 2020, and there is no 30-day notice and comment period.

The temporary regulations published by the U.S. Department of Labor supports that EPLSA leave (80 hours) applies when the Governor or any government authority requires shelter in place.  Specifically, §826.10 General. (a) Definitions. For the purposes of this rule (on page 88): 

Subject to a Quarantine or Isolation Order. For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the employee to be unable to work even though his or her employer has work that the employee could perform but for the order. This also includes when a federal, state, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.

If the business is not operating, the employee would be eligible for unemployment benefits and expansion, but not eligible for EPLSA.  That would be double dipping and not allowed.  The employee is eligible for only one or the other.

If the business is still operational and the employer has work for the employee, but the employee cannot come to work for reasons of a shelter-in-place order by the Governor, the EPLSA would apply in this situation, even if the employee took PTO and then completed that time off before April 1 and is still on the payroll albeit unpaid LOA.  If the employee was already laid off for lack of work, however, the EPLSA would not be available to them.  

On the other hand, if an employer deems an employee critical, exempting them from the Stay Home Executive Order 21, it should then mean that the employee is not subject to a state order and therefore not eligible for EPSLA qualifying reason #1-quarantine or isolation order by a federal, state, or local government authority.  The employee should be working in this situation.

Employers, however, are also confronted with situations where some employees, deemed essential, do not want to come to work because they feel unsafe from COVID-19 in the workplace. Employers facing this scenario have two options (1) allow the employee to utilize their paid time off; or (2) discipline.  If the employer elects the former option, they could place the employee on a leave of absence, using up PTO or other paid time available if any, then the employee could apply for UIA per Executive Order 24.  The employer, depending on which order, state, county or local, must remember it is required to use mitigation measures to make it safe for the employees and document it.  The decision for benefits can be protested and adjudicated by the employer.  The question then becomes how UIA will rule:  Full CARES benefits (+$600), normal benefits and required to search, or denied benefits.

If employers want to go to the logical extreme and have the employee written up for insubordination for not obeying a work requirement and coming back to work and then terminated, employers need to realize that this could be a major optic issue with other employees during this time.  Also, the employer could be subject to a retaliation charge under OSHA or the NLRA. 

As these are temporary rules are not subject to comment, it is expected that employer organizations may file lawsuits to fight this expansive definition of the regulations for quarantine and isolation. 

A suggested approach to this problem is recommended by ASE Instructor and Attorney Jacqui Schulte:

1.       If the employer has work to do, then evaluate whether employee can perform it (in-person or from home) or not.

a.       If employer does not have work to do, employees are laid off and not FFCRA eligible

b.       If there is work to do, the question is whether an employee can do it (in-person/requires an EO-21 exemption as critical; or from home).

2.       If employee cannot perform work, they should be on a LOA.  Paid from PTO per normal LOA policies, until 4/1. 

3.       After April 1 and through end of year, the employer needs to review FFCRA eligibility. 

a.       If yes, pay that to maximum and get tax credit reimbursement. 

b.       If no, employees’ choice to use PTO or be unpaid. 

c.       Whenever employee becomes unpaid they should apply for unemployment (because unpaid LOA is eligible for unemployment in Michigan per Executive Order 24).

ASE Board Member and Clark Hill partner and employment attorney Anne-Marie Vercruysse Welch adds that employers should also look to take advantage of the Paycheck Protection Plan when deciding how best to move forward.

Michigan UIA is working on providing solutions to the issue of employees potentially gaming the system.  With the enhanced benefit, many employees will not have a financial incentive to return to work.

It should be noted for HR, that it is likely a time that employers will consider right sizing their organizations.  Business operations will likely slowly gear up, and many who did layoffs may not recall all or some of the employees.  Further, employees may find better jobs.  Therefore, there will be skilled jobs lacking qualified people, and a dearth of talent may arise in the latter part of the year.  HR needs to prepare now to ensure key jobs are identified and filled.   Training programs and pipeline development should be in place for when the stay at home orders are lifted. 


Additional ASE Resources
FAQs
 - Please review U.S. DOL and ASE COVID-19 FAQs. 

ASE COVID-19 Related Events - Click here to view recordings and handouts from ASE events related to COVID-19.


Please login or register to post comments.

Filter:

Filter by Authors

Position your organization to THRIVE.

Become a Member Today