Is Michigan Executive Order 2020-21 a “Quarantine or Isolation Order” that Triggers Benefits Under the Families First Coronavirus Response Act?
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We have received many questions about whether Executive Order 2020-21 is a “quarantine or isolation order.” The federal Families First Coronavirus Response Act (FFCRA) creates two weeks of paid sick leave for employees who are unable to work because (among other reasons) the employee is “subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” In our opinion, employees who are not able to work because of Executive Order 2020-21 are not subject to a quarantine or isolation order and therefore are not eligible for paid sick leave under FFCRA.
Our opinion is based on our analysis of the definitions of “quarantine” and “isolation” under federal law, as explained below, and has been confirmed by recent guidance U.S. from the Department of Labor.
Definitions of Quarantine and Isolation
The most relevant federal statute is Part G of the Public Health Services Act, titled “Quarantine and Inspection.” This provision authorizes the Surgeon General to issue and enforce regulations to address control of communicable diseases. Those regulations are found in Title 42 of the Code of Federal Regulations, Parts 70 and 71, which address interstate and foreign quarantines. The regulations provide specific definitions of quarantine and isolation.
Quarantine is defined under both part 70 and part 71 as “the separation of an individual or group reasonably believed to have been exposed to a quarantinable communicable disease, but who are not yet ill, from others who have not been so exposed, to prevent the possible spread of the quarantinable communicable disease.” Isolation is defined as “the separation of an individual or group reasonably believed to be infected with a quarantinable communicable disease from those who are healthy to prevent the spread of the quarantinable communicable disease.”
Michigan law does not provide a definition of quarantine or isolation in its public health or emergency powers statutes or regulations. The “Michigan Prepares” webpage states: “Quarantine is used to separate and restrict the movement of people who may have been exposed to a contagious illness, but do not have symptoms to see if they become sick. These individuals may or may not be contagious.” It also states that quarantine may be used when: “A person or a well-defined group of people have been exposed to a highly dangerous and highly contagious disease.
Executive Order 2020-21 is not a quarantine or isolation order
Executive Order 2020-21 is not a “quarantine or isolation order” as that term is used in Section 5201(a)(1) of FFCRA to describe eligibility for paid sick leave. The Order does not meet the federal definition of quarantine because it applies to everyone in the State of Michigan rather than “an individual or group reasonably believed to have been exposed to” COVID-19. For the same reason, it does not meet the federal definition of isolation. While some individuals subject to the Executive Order may have been exposed to or infected with COVID-19, many (likely the vast majority) have not. The Order does not use the terms quarantine or isolation, and it expresses no finding or suggestion that all individuals subject to the order are “reasonably believed to have been exposed to” COVID-19. More fundamentally, the Order includes many exceptions to the stay-at-home directive, allowing all individuals to go to the grocery store and many types of workers to go to work.
Guidance from the Department of Labor
On March 26, 2020, the Department of Labor (“DOL”) published its second set of Q & A regarding the FFCRA. In answering a questions about the scope of the FFCRA and expanded family and medical leave, the DOL stated, “If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave…This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State or local directive.” In other words, the shelter in place orders do not make employees eligible for paid sick leave under the FFCRA. It is also noteworthy that the DOL did not call these Federal, State and local directives quarantine or isolation orders.
Keep in mind that employees who are not subject to a quarantine or isolation order might be eligible for paid sick leave under other subparts of FFCRA. Based on our review of applicable law and DOL guidance, however, employees who are unable to work because of the impact of Executive Order 2020-21 are not entitled to paid sick leave under FFCRA as persons subject to a “quarantine or isolation order.”
 The definitions from the CDC coronavirus guidance are substantively the same. See https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html
 The word quarantine is primarily used with respect to insects and animals where it is defined as “enforced isolation of an animal or group of animals or restriction of movement of an animal or group of animals, equipment, feed and food products, or vehicles to or from any structure, premises, or area of this state, including the entirety of this state, determined by the director.” MCL 287.703(ooo)