Proposed Emergency Paid Leave Requires Employers With Less Than 500 Employees to Provide Paid Sick Leave

This week, Congress will take up the Families First Coronavirus Response Act that was passed by the House on March 14, 2020. The Act has eight sections, one of which is the Emergency Paid Sick Leave Act of 2020.

This article focuses on the Emergency Paid Sick Leave Act (“EPSLA”). EPSLA is not yet law, and the bill that passed the house can still be amended, it is helpful for employers to have some notice of what could be coming in the next few days from Washington, D.C.

Employers Must Provide Paid Sick Time

This Act applies to private employers with 500 employees or less. (Sec. Section 5110(5)(B)(aa). Under EPSLA an covered employer shall provide each employee paid sick time for any of the following uses:

  • To self-Isolate because the employee is diagnosed with coronavirus

  • To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus.

  • To comply with a recommendation or order by a public official jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of:

    • the exposure of the employee to the coronavirus; or

    • exhibition of symptoms of coronavirus by the employee.

  • To care for or assist a family member of the employee who:

    • is self-isolating because such family member has been diagnosed with coronavirus; or

    • is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care.

  • To care for a family member about whom a public official with jurisdiction or a health care provider made a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of:

    • the exposure of such family member to coronavirus; or

    • exhibition of symptoms of coronavirus by such family member.

  • To care for a child of such employee if the school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.

Amount of Sick Time

Full Time

Employers are required to provide two weeks (80 hours) of paid sick time to employees.

Part Time

Employers are required to provide Part Time employees equal to the average number of hours the employee works in a two week period.

No Carry-Over

This Paid Sick Time does not carry over from 1 year to the next.

Sick Time is Available Immediately

The EPSA paid time is available for immediate use by the employee, regardless of how long the employee has been employed by the employer. (Sec. 5102(f))

EPSA Terminates Once the Need the Leave is No Longer

The Paid Sick Time afforded under this Act terminates the next scheduled work shift the employee comes back to work without need for the leave. In other words, the EPSA time, no matter how much was used by the employee (1 day or 12 days), terminates when the employee no longer needs the sick time (ie- when they or their family member are recovered from COVID-19, tested negative after quarantine).

What if a Company Already Has a Paid Leave Policy?

According to EPSL, Section 5102(d), the Paid Sick Time under the Act shall be provided in addition to the Employer Paid Leave Policy. The Act specifies that an employee “may first use the [EPSL Leave]” before using the Employer Paid Leave. (Sec. 5102(f)(A)). Even more, an employer may not require an employee to use the Employer Paid Leave prior to using the EPSL. The Act further restricts employers from changing the Employer Paid Leave Policy after EPSL is enacted for the purposes of avoiding the situation of an employee using the EPSL and then the Employer Leave Policy. For example:

If Company X already offers two weeks paid leave, and EPSLA as written is passed, then a full-time employee of Company X will have: 2 weeks of employer paid leave, and 2 weeks of EPSA leave.

Now, the wording of the Act affords employers some wiggle room; however, as worded, this Act is restrictive to employers. It is prudent from companies to contact counsel to discuss the Sequencing provision of the Act.

For instance, the Act states that employers cannot change their leave policies after the enactment of the Act for the purposes of avoiding the above example of employees taking in some cases almost double the paid leave. With the guidance of counsel, employers should explore how to mitigate the losses that could be incurred by this Act. Steps taken before the enactment of the EPSLA could reduce risk.

Notice, Retaliation and Violations

Section 5103 of the Act requires that each employer post and keep posted a DOL poster that describe the requirements of the Act. The ESPA also hold a anti-retaliation provision. Violations of the ESPA will be prosecuted as if it were an FLSA violation.

NEXT STEPS

It is prudent to contact counsel about how to prevent the losses that might be incurred as a result of this legislation. Employers with any questions or concerns should contact counsel.

Susie Cirilli