Latest Governor’s Order Leaves Unanswered Questions Regarding FFCRA Paid Sick Leave

Governor Walz’s new Executive Order 20-99 enhances certain restrictions on Minnesota citizens related to COVID-19, with these new requirements in effect from Friday, November 20, 2020 at 11:59 p.m. through Friday, December 18, 2020 at 11:59 p.m.

Some aspects of this Executive Order may interact with the Families First Coronavirus Response Act (“FFCRA”) related to COVID-19 paid sick leave, and employers should examine the impact that this Order may have on such obligations.

FFCRA Requirements – Quarantine and Isolation Orders

As we have written previously, the FFCRA requires certain employers to provide employees with up to two weeks of paid sick leave if they are unable to work or telework due to a federal, state or local quarantine or stay-at-home order.

Executive Order 20-99 provides a number of restrictions on travel, specifically providing as follows:

1. Unnecessary travel strongly discouraged. Consistent with federal guidance and to protect our neighbors, Minnesotans are encouraged to stay close to home and are strongly discouraged from engaging in unnecessary travel, particularly to other states or countries.
2. Travel advisory. Persons arriving in Minnesota from other states or countries, including returning Minnesota residents, are strongly encouraged to practice self-quarantine for 14 days after arrival by limiting their interactions to their immediate household. This recommendation does not apply to individuals who must cross state or country borders for work, study, medical care, or personal safety and security.

The Executive Order is silent regarding the question of whether this “strong encouragement” to quarantine after out of state travel constitutes a “quarantine or stay-at-home order”, that would trigger coverage under the FFCRA as set forth above. Therefore, this raises the question of whether a period of quarantine, based solely on the State’s strong encouragement in Executive Order 20-99, constitutes FFCRA-covered leave.

Whether Executive Order 20-99 is a Quarantine or Isolation Order is Unclear

The FFCRA does not expressly define what constitutes being “subject to a quarantine or isolation order.” However, the United States Department of Labor has issued regulations in regard to this issue which state as follows:

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. (emphasis added.)

Here, Executive Order 20-99 provides that citizens who return to Minnesota following non-work related out of state travel are “strongly encouraged” to self-quarantine for 14 days after their return to the state. While, this could be an advisory statement that a category of citizens is to isolate and quarantine, this conclusion is not certain since the Order generally appears to be a recommendation, not a mandate.

That the Executive Order is not a “quarantine or isolation order” is also supported by the language used in relevant IRS FAQ’s related to employee leave.  Though informal guidance issued by the IRS is anything but conclusive or authoritative on this specific issue, one such FAQ notes that when seeking documentation to substantiate an employee’s request for leave, the employee must provide their employer with “the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine,” implying that the governmental quarantine order must be a mandate.

Further, Executive Order 20-99 expressly prohibits wide classifications of social gatherings, demonstrating that the Governor clearly knows how to issue a mandatory prohibition in an Executive Order if that is what he desires.  Thus, the softer “encouragement” language in the provision at issue could be read as nonmandatory, and therefore not an “order” per se.

Given that this critical but uncertain interplay does exist between the Executive Order and the FFCRA, it might be hoped that further clarification would be forthcoming.  In fact, the Order does suggest that further interpretative guidance may be issued in the future.  Unfortunately, there is no indication that such guidance will shed any additional light on whether this Order constitutes a “quarantine or isolation order.”

Bottom Line

Given the lack of precision in this matter, an employer acts at its peril by requiring employees to report for work once they have informed their employer that they have traveled out of state and intend to quarantine for 14 days per the Order’s recommendation.

The safest course of action in this situation is to determine whether the employee can perform their job duties remotely during their quarantine. Indeed, employers should be doing this already since Executive Order 20-99 as well as other, previous Executive Orders have advised that if an employee can successfully work from home they must be allowed to do so.