Tag Archives: shelter in place

Does a “Shelter in Place” or “Stay at Home Order” Trigger Paid Leave under the FFCRA?

Contributed by John Hayes, March 31, 2020

Clock and cash

***Please see updated information on FFCRA regulations in our April 3, 2020 post.

A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.

The question facing many employers now is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The short answer is no.

On March 28, 2020 the U.S. Department of Labor (DOL) issued guidance to address, among other things, the FFCRA provisions related to paid sick leave or expanded medical leave, and whether employers are required to provide paid leave under its provisions if it is forced to close pursuant to SIP orders.  The specific questions that address the provisions for the closure of a worksite can be found on the DOL website and the relevant portions of the answers read as follows:

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

Bottom line: an employee is not eligible for the paid leave requirements of the FFCRA if their worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they reopen and recall the affected employees to work, the recalled employees will be eligible for paid sick or family leave, if they meet the requirements under FFCRA. 

Wisconsin Issues Safer At Home Order in Response to COVID-19

Contributed by Rebecca Dobbs Bush, March 24, 2020

On March 24, 2020, Governor Tony Evers issued Emergency Order #12 entitled “Safer At Home Order.” The Order goes into effect at 8:00 a.m. on Wednesday, March 25, 2020 and will remain in effect until 8:00 a.m. on Friday, April 24, 2020.  Until then, all individuals present within the State of Wisconsin are ordered to stay at home and may only leave their homes for the following functions as defined in the Order: 1) Essential Activities; 2) Essential Governmental Functions; 3) to operate Essential Businesses and Operations; and 3) to perform non-essential Minimum Basic Operations; 4) Essential Travel; or 5) Special Situations.

Individuals are allowed to leave their home or residence to perform the following Essential Activities:

  • To perform tasks essential to their health and safety, such as obtaining medical supplies or medication, seeking emergency services, or visiting a health care or behavior health care professional.
  • To obtain necessary supplies for themselves and their family or household members or to deliver those services to others, such as canned food, dry goods, fresh fruits and vegetables, gasoline, pet supplies, fresh meats and any other household consumer products, and products necessary to maintain the safety sanitation and essential operation of residences.
  • To engage in outdoor activity, including visiting public and state parks, provided individuals comply with social distancing requirements as defined in the Order.
  • To perform work at Essential Business or Operations or to otherwise carry out activities specifically permitted in this Order.
  • To take care of others, such as a family member, friend, or pet in another household, and to transport family members, friends, or pets as allowed in this Order.

Essential Businesses and Operations may stay open provided they comply with Social Distancing Requirements as defined in the Order. Essential Businesses and Operations, include:

  • CISA List: All entities described on the US DHS, Cybersecurity & Infrastructure Security Agency (CISA).
  • Stores that sell groceries and medicine
  • Food and beverage production, transport and agriculture
  • Restaurants may remain open for food take-out or delivery services with customers only being permitted to enter establishments only for the purpose of ordering, pick up, and paying for food or beverage or both.
  • Bars may remain open for carryout sales of alcohol beverages and food, if permitted by state law and municipal ordinance.
  • Childcare settings with priority given to employees, contractors, and other support staff working in health care
  • Organizations that provide charitable and social services
  • Weddings, funerals, and religious entities (with gatherings only permitted to include fewer than 10 people)
  • Media
  • Gas stations and businesses needed for transportation
  • Financial institutions and services
  • Hardware supply stores
  • Critical trades, including building and construction tradesmen and tradeswomen, and other trades including but not limited to plumbers, electricians, carpenters, laborers, sheet metal, iron workers, masonry, pipe fitters, and any other service providers that are necessary to maintain the safety, sanitation, and essential operation of residences.
  • Mail, post, shipping, logistics, delivery, and pick-up services
  • Laundry services
  • Businesses that sell, manufacture, or supply products needed for people to work from home
  • Businesses that provide support or sell supplies necessary to operate Essential Business
  • Transportation, including airlines, taxis and transportation network providers (such as Uber and Lyft)
  • Home-based care and services
  • Professional services, such as legal or accounting services, insurance services, and real estate services
  • Manufacture, distribution, and supply chain for critical products and industries
  • Critical labor union functions
  • Hotels and motels (with certain limitations)
  • Higher educational institutions (for purposes of facilitating distance learning)

There is also a process available to apply to the Wisconsin Economic Development Corporation if a business believes it has been inappropriately excluded from the definition of essential.

Non-essential business operations must cease.  However, those businesses may have their employees work from home where possible and are allowed to maintain Minimum Basic Operations, including minimum necessary activities to maintain inventory, preserve equipment and facilitate employees being able to continue to work remotely from their residences.

All business (essential and non-essential) must, to the greatest extent possible, use technology to avoid meeting in person. No business in the State of Wisconsin may engage in door-to-door solicitation. Social Distancing Requirements include maintaining six feet between people; washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, regularly cleaning high touch services, and following all other public health recommendations issued by the DHS and the CDC.

As Governor Evers summarized at the end of his press conference clarifying the Order, “No potlucks, play dates or dinner parties. And, if you have to go out, please stay 6 feet away from each other.”

“Stay at Home” Order in Illinois

Contributed by Carlos Arévalo and Sara Zorich, March 20, 2020

Earlier we reported on the issuance of “shelter-in-place” orders in California and Pennsylvania as well as a number of other communities.  Effective March 21, 2020 at 5:00 pm CST and until April 7, 2020, Illinois will join the ranks and implement its own “Stay at Home” order.  As we also noted earlier, “shelter-in-place” orders differ from one jurisdiction to another and some may be more restrictive.  Illinois’ approach, however, is more permissive and gives businesses and individuals more latitude. 

Pursuant to the Illinois order, all persons may leave their homes only for essential activities, essential governmental functions, or to engage in essential businesses and operations. Essential activities include leaving home to seek health care, to purchase necessary supplies, to work for entities engaged in health care, essential government functions and essential infrastructures, to take care of family, friends or pets, or to engage in outdoor activity while complying with social distancing requirements. The order also permits travel to and from essential activities, governmental functions and essential businesses and operations.

The order expressly provides that individuals who work in ESSENTIAL BUSINESSES & OPERATIONS are permitted to leave their home and go to work. 

Essential Business & Operations means: Healthcare and Public Health Operations, Human Services Operations, Essential Governmental Functions, and Essential Infrastructure.

***Healthcare and Public Health Operations.

Healthcare and Public Health Operations includes, but is not limited to: hospitals; clinics; dental offices; pharmacies; public health entities, including those that compile, model, analyze and communicate public health information; pharmaceutical, pharmacy, medical device and equipment, and biotechnology companies (including operations, research and development, manufacture, and supply chain); organizations collecting blood, platelets, plasma, and other necessary materials; licensed medical cannabis dispensaries and licensed cannabis cultivation centers; reproductive health care providers; eye care centers, including those that sell glasses and contact lenses; home healthcare services providers; mental health and substance use providers; other healthcare facilities and suppliers and providers of any related and/or ancillary healthcare services; and entities that transport and dispose of medical materials and remains.

Specifically included in Healthcare and Public Health Operations are manufacturers, technicians, logistics, and warehouse operators and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.

Healthcare and Public Health Operations also includes veterinary care and all healthcare services provided to animals.

Healthcare and Public Health Operations shall be construed broadly to avoid any impacts to the delivery of healthcare, broadly defined. Healthcare and Public Health Operations does not include fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities.

***Human Services Operations.

Human Services Operations includes, but is not limited to: long-term care facilities; all entities licensed pursuant to the Child Care Act, 225 ILCS 10, except for day care centers, day care homes, group day care homes, and day care centers licensed as specified in Section 12(s) of this Executive Order; residential settings and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness; transitional facilities; home-based settings to provide services to individuals with physical, intellectual, and/or developmental disabilities, seniors, adults, and children; field offices that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, child care, vocational services, rehabilitation services; developmental centers; adoption agencies; businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged individuals, individuals with physical, intellectual, and/or developmental disabilities, or otherwise needy individuals.

Human Services Operations shall be construed broadly to avoid any impacts to the delivery of human services, broadly defined.

***Essential Infrastructure.

Essential Infrastructure includes, but is not limited to: food production, distribution, and sale; construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction); building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical (including power generation, distribution, and production of raw materials); distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).

Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.

***Essential Governmental Functions.

Essential Government Functions means all services provided by the state or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing Essential Government Functions. Each government body shall determine its Essential Governmental Functions and identify employees and/or contractors necessary to the performance of those functions.

Indeed, the order expressly states that “all businesses and operations are encouraged to remain open.” 

Other key businesses that will remain open include, but are not limited to, the following:

  1. Grocery stores and pharmacies;
  2. Food, beverage and cannabis producers;
  3. Charitable organization providing social services, such as food banks and shelters;
  4. Media;
  5. Gas stations and businesses supporting transportation;
  6. Financial institutions from banks and financial markets to payday lenders and pawnshops;
  7. Hardware and supply stores;
  8. Critical trades, including plumbing, electricians, and other construction trades;
  9. Post offices and other delivery services;
  10. Educational institutions (currently engaged in e-learning activities due to other restrictions and closures);
  11. Laundry services;
  12. Restaurants for off-premises consumption;
  13. Home office suppliers;
  14. Essential businesses and operations suppliers;
  15. Transportation;
  16. Home-based care and services;
  17. Residential facilities;
  18. Professional services;
  19. Day care centers for employees exempted under order;
  20. Manufacturers, distributors and supply chain for critical industries;
  21. Critical labor union functions;
  22. Hotels and motels; and
  23. Funeral services.

Also noteworthy, all first responders, emergency management personnel, court, corrections and law enforcement personnel, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support essential businesses and operations are specifically exempted from the order.

Finally, and perhaps most importantly, any business or entity that supports an essential business, as broadly and expansively defined in the order, will be permitted to remain open and its employees will be permitted to work. 

Accordingly, the Illinois “stay at home” order is comparably broader and more flexible than any other shelter-in-place order issued to date.  While we expect to learn more as we move forward, the order’s purpose is nevertheless clear: to contain and reduce spreading the virus.  In fact, if a business remains open it MUST take proactive measures to ensure compliance with social distancing requirements WHERE POSSIBLE.  The order mandates that any business operating must comply with the following, where possible:

  • Designate six-foot distances: Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
  • Hand sanitizer and sanitizing products: Having hand sanitizer and sanitizing products readily available for employees and customers;
  • Separate operating hours for vulnerable populations: Implementing separate operating hours for elderly and vulnerable customers; and
  • Online and remote access: Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.

We will continue to monitor any developments and update as needed.

My Employee is Subject to a “Shelter-in-Place” Order – What Do I Do Now?

Contributed by Carlos Arévalo, March 20, 2020

As we continue to grapple with the impact of the COVID-19 pandemic, and with potentially more drastic measures being imposed by health officials, the question becomes what is the impact on employers if a shelter-in-place order is issued. The answer:  it depends on the order.

In response to the crisis, a number of states, counties and cities have imposed or are considering shelter-in-place orders. Generally, a shelter-in-place order means that individuals must stay in their residences and not leave “unless necessary for one of the designated exceptions.” The purpose of such orders is to contain the spread of the virus by minimizing interaction between individuals to only those activities that are absolutely necessary.  Such orders, as adopted or under consideration by various jurisdictions, do not appear to compel full out seclusion and isolation or to prohibit the public from venturing outside their homes. The City of San Francisco, on March 16, 2020, issued the first shelter-in-place order. California, in the first state-wide measure, followed suit last night extending local measures to its 40 million residents. A similar measure was also adopted last night in Pennsylvania where Governor Tom Wolf announced that all but “life sustaining” businesses in the state were ordered to shut down (Pennsylvania’s measure does contain a very specific list of affected businesses by industry and sector). While the terms of such orders will vary, they contain exceptions for “essential services” impacting a number of critical infrastructure sectors.

By way of illustration, the City of San Francisco’s measure had health officials issue an order that generally directed the public to stay in their homes except for the following:

1.      To provide or receive essential services;

2.      To engage in essential activities; and

3.      To work in essential businesses and government services.

Measures that followed elsewhere similarly include terms like “essential services”, “essential activities” and/or “essential business and government services.”  These terms are specifically defined and must be reviewed to determine whether or not your employees will be able to make it to work. In the San Francisco order “essential activities” incorporate activities or tasks essential to health and safety. Examples of this include going to the doctor, buying food or medicine, obtaining supplies to work from home, or performing work for “essential businesses” that provide “essential services.”  “Essential businesses” include health care providers, grocery stores or other food producing/retail establishments (restaurants are generally limited to take out/curb side), gas stations, banks, and even professional services that support the legally mandated activities of essential businesses. Certainly, protective services and first responders are also engaged in essential services so they are not going to be limited. Finally, orders also address “essential travel”, which generally consists of going to/coming from work, the doctor, or any destination where essential services will be procured.

Bottom line, individuals should be able to go to work provided their employers are engaged in an essential business or government service or in support of such businesses or services. While “shelter-in-place” orders may differ from one jurisdiction to another and may be more restrictive depending on your location, the objective is still containment of the virus. Thus, your employees should be able to come to work, go home at the end of the day and even stop at the store for groceries or other essentials.  But they will not be able to go out to dinner, hang out at a bar for drinks or engage in any entertainment or social activities with lots of people around them. 

As with all matters involving COVID-19, this is a fluid situation with frequent, if not daily, developments. These may involve not just “shelter-in-place” orders, but other health official directives that must be carefully reviewed to ensure compliance. We will continue to monitor and update as needed.