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UPDATED: How does Alabama’s stay-at-home order impact Families First Act?

Updated on April 24, 2020.

This is an updated blog post to replace the blog we posted on April 7, 2020. As we keep saying, these issues are evolving, and we are keeping these posts updated as new information and guidance is issued by the Department of Labor (DOL).

On Friday, April 3, 2020, Alabama State Health Officer Dr. Scott Harris signed a stay-at-home order which closed all nonessential businesses and workplaces. The question many employers are asking is whether the stay-at-home order triggers emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA or Families First Act).

As a reminder, employees may be eligible for emergency paid sick leave for six different qualifying reasons. This blog post discusses all six reasons. For the purposes of this blog post, however, I will only address the first reason and whether it is triggered by Alabama’s stay at home order.

Under the FFRCA, an employee may be eligible for emergency paid sick leave if the “employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” FFCRA, § 5102(a)(1). Under Alabama law, the Department of Public Health may issue a quarantine order, which, by definition, restricts the movement of well people to decrease the spread of a contagious disease. Ala. Code § 22-12-1 and following. By comparison, an isolation order is directed at individuals who exhibit symptoms of or have tested positive for a contagious disease.

Effective April 4, 2020, Alabama has a stay-at-home order in place that closes down many businesses. While it is not crystal clear whether the stay-at-home order constitutes a quarantine or isolation order under Alabama law, the United States Department of Labor has made it clear that is considers these kinds of stay-at-home orders sufficient to trigger leave under the Families First Act. Regulations issued by the Department of Labor include stay-at-home orders in its definition of quarantine or isolation orders. Additionally, the FAQ section for Families First Act specifically addresses that issue.

So if the stay-at-home order generally qualifies as a quarantine or isolation order under the Families First Act, are employees automatically entitled to leave? Maybe, but probably not. If the employer does not have work for its employees (even due to the stay-at-home order), leave is not available. For example, if a restaurant is limited to curbside business only under the stay-at-home order and has to furlough its waitstaff, it would not be eligible for emergency paid sick leave under the Families First Act. The guidance from the DOL states that leave is not available if an “employer does not have work for [its employees] to perform as a result of the order or for other reasons.” In other words, if a workplace is closed due to Alabama’s stay-at-home order, then leave is likely not available. However, because the landscape is changing constantly and riddled with potholes, we recommend reviewing every request for leave very carefully and thoroughly.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

Copyright 2020

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