FFCRA: Emergency Paid Sick Leave Act
Robert Clayton "Clay" Roesch April 2, 2020
What is The Emergency Paid Sick Leave Act (“E-PSLA”)
The Families First Coronavirus Response Act signed into law by President Trump on March 18, 2020, contains a number of provisions, with four in particular that have an immediate impact on employers and employees. In this article, we explain some of the legal implications of the Emergency Paid Sick Leave Act.
The Emergency Paid Sick Leave Act (“E-PSLA”) provides paid sick leave for certain employees for specified scenarios related to COVID-19. Just like E-FMLA, the E-PSLA goes into effect on April 1, 2020, and expires on December 31, 2020.
Who Is Covered?
Although “covered employer” under the E-PSLA is not clearly defined, it applies to private employers with fewer than 500 employees and public entities with at least one employee. The new law appears to exclude larger employers with 500 or more employees. Likewise, it also appears to apply to individuals acting on behalf of employers (e.g., supervisors, managers, owners, etc.).
Employees are entitled to paid sick leave under the E-PSLA for the following six reasons:
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 COVID-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 quarantine/isolation order of who has been advised to self-quarantine due to COVID-19 concerns.
The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter (as defined by FMLA) has been closed, or the childcare 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 Secretary of Labor.
How Much Paid Sick Leave Must an Employer Provide?
Full-time employees are entitled to 80 hours of paid sick leave at their full rate of compensation for qualifying reasons (1), (2), and (3) provided above. For qualifying reasons (4), (5), and (6) listed above, a full-time employee is entitled to 80 hours of paid sick leave at two-thirds their rate of pay.
Part-time employees are entitled to payment equal to the average number of hours they worked over a two-week period. Note that the E-PSLA as is does not identify which two-week period the employer must use in this calculation. The Department of Labor is tasked with issuing guidelines on this matter within 15 days after enactment of the new law.
Paid sick leave is capped at $511 per day and $5,110 total per employee for use under qualifying reasons (1), (2), and (3); and capped at $200 per day and $2,000 total per employee for use under qualifying reasons (4), (5), and (6). The E-PSLA requires paid sick leave in addition to the employer’s existing paid leave policy, but any unused paid sick leave under E-PSLA does not carry over after December 31, 2020. Likewise, it does not have to be paid out upon separation of employment. The E-PSLA does not permit employers to substitute any prior paid leave they may have provided employees for COVID-19 related reasons. Moreover, employers must allow the employees to use E-PSLA paid sick leave before they use any remaining accrued paid leave that the employer provides.
Other Important Considerations
Emergency paid sick leave under the E-PSLA shall be available immediately to employees regardless of how long the employee has been employed by the employer.
The Secretary of Labor will issue a model notice regarding employee rights under the E-PSLA within seven (7) days after enactment. Employers must post this notice in a conspicuous place where notices to employees are customarily posted.
Again, under the E-PSLA, The Secretary of Labor reserved the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition of the Act’s requirements would jeopardize the viability of the business as a going concern. To date, no further elaboration on this exemption has been made. It is possible that the Secretary of Labor will issue guidance regarding this exemption prior to April 2, 2020. But currently the application of this exemption is undetermined
Employers may not take adverse action against an employee who takes leave under the Act or files a complaint relating to the Act (the expected anti-retaliation provision).
Employers who violate the E-PSLA shall be considered to have failed to provide minimum wages under the Fair Labor Standards Act (“FLSA”) and are subject to the same penalties.
For the latest updates on the Emergency Unemployment Insurance Stabilization Act, contact our employment law team for information. To see other legal updates that are occurring from COVID-19, visit our resources page HERE. To see our other FFCRA blogs visit here:
View our other FFCRA Blogs Here:
Families First Coronavirus Response Act: Emergency Family and Medical Leave Expansion Act
FFCRA Emergency Unemployment Insurance Stabilization Act
Authors: Dillon McColgan & Clay Roesch