COVID-19 and Paid Sick Leave
On Wednesday, March 18, 2020, President Trump signed the Families First Coronavirus Response Act, H.R. 6201 (FFCRA) to address the impact of the COVID-19 national health emergency. Among other provisions, the FFCRA provides up to two (2) weeks of paid sick leave and up to twelve (12) weeks of paid family medical leave to help those dealing with medical issues relating to COVID-19, as well as to care for children affected by school and child care closures. FFCRA will be effective no later than April 2, 2020.
The Emergency Paid Sick Leave Act
Included within the FFCRA is the Emergency Paid Sick Leave Act (the E-PSL Act). The E-PSL Act takes effect on April 2, 2020 – 15 days after the Families First Coronavirus Response Act was enacted. The E-PSL Act mandates that certain employers provide employees who are unable to work or telework because of one of six reasons related to COVID-19 with a period of paid leave.
The E-PSL Act applies to nearly all employers with fewer than five hundred (500) employees. It also applies to public agencies employing at least one person. Any college or university that is a political subdivision of a state is considered a public agency.
By contrast, all employees of covered employers are eligible for this leave, no matter when they were hired or whether they are full or part-time. This leave is a benefit in addition to any others employees have or could accrue; it cannot diminish or serve as a replacement for those benefits.
Conditions for leave
Employers cannot require employees to use other leave before using E-PSL Act leave. Additionally, they cannot require that an employee find their own replacement before going out, and there are strict anti-retaliation provisions. That is, employers must not take any adverse employment action against someone for taking this leave or for filing a complaint, instituting a proceeding, or participating in a proceeding under or related to the E-PSL Act.
Still, there are protections for employers. Even after the employee begins receiving E-PSL, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time. The E-PSL Act leave ceases upon the employee’s return to work from a qualified absence. An employee’s E-PSL allotment does not carry over to the next year, and employees forfeit any of the sick days they do not use. The E-PSL Act is scheduled to require on Dec. 31, 2020.
Qualifying reasons for leave
To take paid leave under the E-PSL Act, the employees must be unable to work or telework because of one of six (6) reasons related to COVID-19:
1. The employee is subject to a government-mandated quarantine.
2. The employee has been advised by a health care provider to self-quarantine.
3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
4. The employee is caring for an individual covered under reasons 1 or 2 above.
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.
Pay requirements during E-PSL leave
Full-time employees can get up to eighty (80) hours of sick pay. Part-time employees are eligible for up to the number of hours they are normally scheduled to work in a two-week period.
Employees will be paid their regular hourly rate up to $511/day or $5,110 in the aggregate for COVID-19 absences related to reasons one, two, and three noted above. Employees will receive 2/3 their regular rate of pay, with a max of $200/day or $2,000 in the aggregate, for absences related to reasons four, five, and six noted above.
Multi-employer collective bargaining agreements
For employers who are signatories to multi-employer collective bargaining agreements, they can fulfill their obligations by paying into the multiemployer fund, program, or plan the amount equivalent to the E-PSL Act leave that its employees are entitled to, so long as the employees can secure payment from it. To do this, employers must follow the plan and any of the bargaining requirements associated with it.
There are potential exceptions for some employers with fewer than five hundred (500) employees. The Act authorizes the Secretary of Labor to issue regulations excluding health care workers and first responders from the definition of “employees” under the act. The Secretary of Labor is also authorized to issue regulations excluding employers with fewer than fifty (50) employees from complying if compliance with the Act would jeopardize the viability of the company. Further action by the Department of Labor is needed before these potential exceptions would become effective.
Like many employee rights, including the FMLA, employers will have to post the E-PSL Act notice – to be provided by the Secretary of Labor – in the conspicuous location where it posts similar notices.
The penalties for noncompliance mirror the noncompliance for the FLSA. The failure to pay sick leave under the E-PSL Act will be treated the same as not paying minimum wage. Aggrieved employees will be entitled to lost wages; an additional amount equal to the lost wages, as liquidated damages; and attorneys’ fees. The E-PSL Act further provides that an unlawful termination is a willful act. Thus, violators could face a fine of up to $10,000, and the FLSA’s criminal provisions apply if there was a prior violation. Reinstatement of affected employees is also an available remedy.