Does an Employee’s Refusal to Test Qualify for Emergency Paid Sick Leave?

Posted on October 21, 2020 by Kari Thurlow

LeadingAge MN has received several questions from members regarding an employee’s refusal to participate in COVID-19 outbreak testing.

State and federal guidelines state that staff who refuse outbreak testing should not be allowed in the building, so the question that has arisen is whether an employee that refuses testing, and therefore is not allowed in the building, qualifies for Emergency Paid Sick Leave (EPSL) under the FFCRA. We ran this question past Penny Phillips and Grant Collins at the Felhaber Larson firm. They have advised our members that this scenario does not qualify an employee for EPSL under the FFCRA. The basic rationale for this advice is that the employee is out of work due to a refusal to comply with testing protocol, not due to a quarantine order.

According to the US Department of Labor, an employee is eligible for EPSL pay if the employee is subject to “a 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.” According to the comments to the regulations, Section 826.20(a)(2) explains that an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking . . . .  The question is whether the employee would be able to work or telework ‘‘but for’’ being required to comply with a quarantine or isolation order.

A quarantine order will restrict an employee’s mobility. If an employee who refused to test at a LTC facility wanted to work at a restaurant, they could because they are not being told that they cannot work at all, just that they cannot work in the facility. In other words, both the CDC and the MDH guidance address whether the employee can come to work at that facility, not whether the employee is required to quarantine in general.

As a reminder, employers may make outbreak testing a condition of employment, and can take disciplinary action against an employee for refusing to test pursuant to the provider’s protocols.

Finally, if you have further questions about FFCRA Leave, please refer to the updated FAQ document and to the FFCRA decision tree FFCRA decision tree. You can also send your employment law questions to Kari Thurlow at kthurlow@leadingagemn.org.