On April 1, 2020, the DOL issued its regulations on the paid leave provision of the Families First Coronavirus Response Act (i.e., the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act). While there is a lot to digest in the rule, the most significant aspect is the definition of and commentary surrounding quarantine or isolation orders.
The Rule defines “quarantine or isolation orders” to include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility. The commentary (page 14) to the Rule explains that:
An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.1 That said, he may be eligible for state unemployment insurance and should contact his State workforce agency or State unemployment insurance office
for specific questions about his eligibility.
And just like legal briefs, the best stuff comes in a footnote explaining that:
This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, 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 himself was subject to the order.
Consequently, the regulations provide that if a business is closed directly or indirectly by a shelter-in-place or stay-at-home order and the business has no work for its workers, paid leave under the FFCRA is not available.
You can see the full rule and commentary here.