Congress Passed the Emergency Paid Sick Leave Act
Congress passed the revised Families First Coronavirus Response Act today, March 18, 2020. This update will focus on the Final Version of the Emergency Paid Sick Leave Act (“EPSLA”). Please note that the President still needs to sign this Bill in order for it to become law.
Paid Sick Time Requirement
Employers with 500 employees or less are required to provide paid sick time where an employee is unable to work (or telework) due to the need for leave because:
The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID0-19.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
The employee is caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
The employee is caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Please note that an employer of an employee who is a health care provider or emergency responder may elect to exclude such employees from the application of this Act.
Duration of Paid 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.
Paid Sick Time
Employees Take Leave for Themselves
When an employee takes leave because they are (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19, (2) been advised by a health care provider to self-quarantine due to concerns related to COVID0-19, or (3) experiencing symptoms of COVID-19 and seeking a medical diagnosis, the pay cannot exceed $511 per day and $5,110 in the aggregate. When an employee takes time for the above listed reasons, Employers must compensate the employee the greater of (1) the regular rate of pay and (2) the applicable minimum wage. In other words, employees must be be paid their full regular rate of pay. (100%).
Employees Take Leave for Others
When an employee takes leave because they are (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) caring for a son or daughter if the school or place of care of the son or daughter has been closed; (4) the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or (5) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor, the pay cannot exceed $200 per day and $2,000 per week. When an employee takes time for the above referenced reasons, the employer must pay the employee 2/3 of their pay.
Department of Labor Will Issue Guidelines
Section 5110(D) of the Act states that the Department of Labor will issue guidelines regarding how to calculate the amount of paid sick time. These guidelines must be issued within 15 days of Enactment of the Act.
Paid Sick Time 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 Paid Sick 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).
Employers Cannot Require Employee to Get Coverage
Employers are explicitly prohibited from requiring an employee who needs the Paid Sick Time to find a replacement employee to cover their hours.
Paid Sick Time is Available Immediately
The Paid Sick time must be made available for immediate use by the employee, regardless of how long that employee has been employed.
What if an Employer Has a Paid Leave Policy?
If an employer already has a Paid Leave Policy, Employers are prohibited from requiring an employee to use other paid leave before taking the Emergency Paid Sick Time.
Note: This Amended Bill does not prohibit employers from amending their Paid Leave Policies.
Notice, Retaliation and Violations
The Act requires that each employer put up a DOL poster that describe the requirements of the Act. The EPSA also hold a anti-retaliation provision. Violations of the EPSA will be prosecuted as if it were an FLSA violation.
Possible Exclusions and Exemptions
The Act gives authority to the Department of Labor to issue a regulation that would exclude Health Care Providers and Emergency Responders from the definition of employee, but allowing such employer to opt in and to afford the Health Care/ER employees the Paid Sick Time.
The Act also gives authority to the Department of Labor to issue regulations that would exempt small businesses (50 employees or less), if such leave would jeopardize the viability of the business. Again, this is not a guaranteed exemption. The DOL must first issue the Regulations, and clarify what it means for the viability of the business to be jeopardized.
Tax Credits
Division G of the Families First Coronavirus Response Act outline tax credits for employers. The specifics of which are not discussed in this article.
Sunrise and Sunset
This Act will be effect no later than 15 days after signed into law, and it will no longer be effective as of December 31, 2020.