Under Governor Lamont’s Latest Executive Order, Travelers from “Hot Spot” States Exempt from Self-Quarantine if they Meet Certain Testing Requirements
Under prior Executive Orders, travelers arriving in Connecticut from “hot spot” states are required to self-quarantine for a period of 14 days from the time of last contact with the hot spot state.
Under newly-issued Executive Order No. 9B, an affected traveler is exempt from the self-quarantine requirement if he or she has had (i) a test for COVID-19 in the 72 hours prior to arrival in Connecticut, (ii) the result of such COVID-19 test is negative, and (iii) the affected traveler submits written proof of the negative test result to the Commissioner of Public Health or his or her designee. These changes take effect after Friday, 9/18 12:01 a.m. This will be welcome news for Connecticut employers who have been grappling with issues (including FFCRA issues) that arise when employees are required to self-quarantine following travel to many popular domestic travel destinations. Please see Executive Order 9B for more information.
DOL Issues Revised FFCRA Regulations in Response to New York Federal Court’s Decision
The U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) that will take effect on September 16, 2020. These regulations were revised in response to a federal court’s decision on August 3, 2020 that invalidated various DOL regulations interpreting the FFCRA. For more information regarding the requirements of FFCRA, see our previous alerts here and here.
DOL Reaffirms the Work Availability Requirement
The DOL reaffirmed its position that leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) may be taken only if the employer actually has work available from which an employee can take leave. In other words, the qualifying FFCRA reason must be the “but-for,” or sole reason that the employee is not working. The regulations logically explain that if there is no work for an employee to perform due to the worksite being closed (temporarily or permanently) or because the employee has been furloughed, then the employee is not entitled to paid leave under FFCRA because the qualifying reason could not be the “but-for” cause of the employee’s inability to work. That being said, the DOL emphasized that its interpretation does not permit an employer to avoid granting FFCRA leave by simply by claiming it lacks work for that employee. And remember that FFCRA contains an anti-discrimination/anti-retaliation provision!
Health Care Provider Exclusion is Narrowed
Employers may elect to exclude certain “health care providers” from leave benefits under the FFCRA. The original regulation, which the federal court found invalid, defined health care providers broadly as anyone employed at any doctor’s office, hospital, health care center, clinic, medical school and more.
The DOL has now revised the definition of “health care provider” to specifically include two categories. The first category is anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
The second category includes individuals who provide “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” This category includes nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services and/or those who are otherwise integrated into and necessary to the provision those services.
The DOL has narrowed the original definition by making it clear that a person is not a health care provider merely because his or her employer provides health care services. In other words, employers may not, for example, exempt building maintenance staff, human resources personnel, IT professionals, records managers, billers and food services workers as health care providers, even if they work at a health care facility.
Changes to Intermittent Leave Requirements
Pursuant to the original regulations, intermittent leave under FFCRA was permitted in limited circumstances and subject to employer consent. The regulations continue to provide that an employee who is teleworking may take intermittent leave for any of the qualifying reasons as long as the employer consents. With respect to the employees who report to an employer worksite, however, the employee may only take intermittent leave when the employee satisfies the childcare qualifying reason and obtains employer consent. There is one key exception. The DOL has stated that where an employee’s child is attending a hybrid school schedule and is required to learn remotely on alternating days, each of those days (or half days), is considered a separate period of closure for which an employee is not actually seeking intermittent leave. In other words, where an employee’s child is attending in-person classes on Mondays, Wednesdays and Fridays, but learning remotely on Tuesdays and Thursdays, the employee does not need employer consent to take leave for Tuesday and Thursday because those days are each considered separate closures. Practically speaking then, employer consent is only necessary when the employee seeks to take leave for a portion of the time that the school is “closed” or the childcare unavailable.
Documentation and Timing Requirements for Notice of Leave
The revised regulations now require that the documentation necessary to support a leave request under FFCRA must be provided as soon as practicable as opposed to prior to the leave.
As always, if you have any questions, please contact us.
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