Mar 18

Mar 18 Families First Coronavirus Response Act – Emergency Paid Sick Leave Act

March 18, 2020 – The President has signed into law the Families First Coronavirus Response Act, which among other things, provides emergency paid sick leave for some American workers.[1] Below is an overview of Division E of the Families First Coronavirus Response Act, the Emergency Paid Sick Leave Act, which requires certain employers to give paid sick time to employees who are unable to work or telework because of six different coronavirus-related circumstances. These include employees who cannot work because they or their children are or may be infected with the virus, or employees who must care for their children due to school or daycare closures.

The Emergency Paid Sick Leave Act - Paid Sick Time For Inability To Work Or Telework

Division E of the Families First Coronavirus Response Act, the Emergency Paid Sick Leave Act, requires certain employers to give paid sick time to employees who are unable to work or telework because of six different coronavirus-related circumstances. These include employees who cannot work because they or their children are or may be infected with the virus, or employees who must care for their children due to school or daycare closures.

Specifically, an employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work or telework due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.

(3) The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee 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.

(6) 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. SEC. 5102(a)(1)-(6)

Definition Of Employers Subject To Act

Among others, the Act applies to a private entity engaged in commerce or in any industry or activity affecting commerce that employs fewer than 500 employees. SEC. 5110(2)(B)(i)(I)(aa).

Amounts of Paid Sick Time

The Emergency Paid Sick Leave Act entitles employees to the following amounts of paid sick time:

Full-time employees get 80 hours.

Part-time employees get a number of hours equal to the number of hours that such employee works, on average, over a 2-week period. SEC. 5102(b)(2)(A)-(B).

In the case of a part-time employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken paid sick time, the Emergency Paid Sick Leave Act provides a formula for determining such employee’s amount of paid sick time. SEC. 5110.(5)(C).

The Department of Labor will be releasing guidelines to assist employers in calculating the amount of paid sick time for employees.

Paid Sick Time Limits

In no event shall such paid sick time exceed $511 per day and $5,110 in the aggregate for the following three circumstances:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.

(3) The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis. SEC. 5110.(5)(A)(ii)(I).

In no event shall such paid sick time exceed $200 per day and $2,000 in the aggregate for the following three circumstances:

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

Required Employee Compensation

Subject to the paid sick time limits, an employee’s required compensation shall be not less than the greater of the following:

The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938.

The minimum wage rate in effect under section 6(a)(1) of the Fair Labor Standards Act of 1938.

The minimum wage rate in effect for such employee in the applicable State or locality, which-ever is greater, in which the employee is employed. SEC. 5110.(5)(B)(i).

There is a special required employee compensation rule for care of family members. With respect to any paid sick time provided for any use described in (4), (5), or (6) above, the employee’s required compensation shall be two-thirds of the amount described above. SEC. 5110.(5)(B)(ii).

Duration of Paid Sick Time

This paid sick time will not carry over from 1 year to the next. SEC. 5102(b)(3). This paid sick time will cease beginning with the employee’s next scheduled work-shift immediately following the termination of the need for paid sick time. SEC. 5102(c).

Employer Cannot Require Employee To Help Find Replacement

The employer cannot require, as a condition of providing paid sick time, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time. SEC. 5102(d).

Employee Use Of Paid Sick Time

Paid sick time shall be available for immediate use by the employee regardless of how long the employee has been employed. SEC. 5102(e)(1)(a).

An employee may first use the paid sick time for one of the six paid sick leave purposes. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the coronavirus emergency paid sick time. SEC. 5102(e)(2)(A)-(B).

Employer Must Post Dept. Of Labor Model Notice Requirements

Employers must post emergency sick leave information for employees, after the Dept. of Labor releases a model notice of the requirements. SEC. 5103(a)-(b).

Employer Cannot Fire Employee For Taking Emergency Sick Leave

An employer cannot discharge, discipline, or in any other manner discriminate against any employee who takes this emergency paid sick time. SEC. 5104.

Enforcement Of Employer Violations

Employers who violate the Emergency Paid Sick Leave Act will be subject to enforcement penalties under the Fair Labor Standards Act of 1938. SEC. 5105.

Emergency Paid Sick Leave Act Expires On December 31, 2020

The Emergency Paid Sick Leave Act and its requirements will expire on December 31, 2020. SEC. 5109.

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[1] H.R.6201, Families First Coronavirus Response Act, 116th Cong., 2nd Sess. (Signed Mar. 18, 2020), Public Law No: 116-127, https://www.congress.gov/116/bills/hr6201/BILLS-116hr6201enr.pdf.