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Employers Must Prepare to Provide Paid Sick Leave to Employees Impacted by COVID-19

March 19, 2020


Last night, President Trump signed the Families First Coronavirus Response Act (“FFCRA”).  The FFCRA is focused on supporting American families by attempting to mitigate the economic impact of the COVID-19 pandemic.  It includes a variety of benefits intended to assist individuals through the ongoing crisis, including paid leave guarantees for certain employees, unemployment benefits, employer tax credits, free coronavirus testing, and strengthened food security initiatives.  This Alert outlines two key provisions that impact employers’ administration of leave during this pandemic: an expansion to the Family and Medical Leave Act (“FMLA”) and a federal Emergency Paid Sick Leave Act.

Emergency Family and Medical Leave Expansion Act

The FFCRA expands traditionally available leave under the FMLA with the Emergency Family and Medical Leave Expansion Act (EFMLEA).

Covered Employers.  The EFMLEA’s requirements apply to all employers with fewer than 500 employees, superseding the FMLA threshold of employers with over 50 employees working 20 or more weeks per year.

Covered Employees.  Eligible employees are those who have been employed by the employer for at least 30 calendar days.

Expanded Leave Entitlement & Employer Requirements.  In addition to the requirements of the FMLA, the EFMLEA’s expanded requirements include:

  • Providing for 12 weeks of protected leave, with the first ten days being unpaid and the remaining time allowing for eligible employees to receive two-thirds of their usual pay
    • Employees can elect to substitute accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave portion
  • Covering leave for an employee unable to work or telework due to a “qualifying need related to a public health emergency,” which includes an employee’s need to care for children whose school is closed or whose childcare provider is unavailable due to a public health emergency (COVID-19).

Limits for Family & Medical Leave Wages.  The EFMLEA caps wages at a maximum of $200 per day or an aggregate of $10,000.

Carve-outs for Small Businesses.

  • While the EFMLEA applies to businesses with fewer than 50 employees, it contains a provision allowing the Department of Labor to exempt such small businesses from the requirements of the EFMLEA when the imposition “would jeopardize the viability of the business as a going concern.”
  • Employers with fewer than 25 employees do not have to restore employees to their previous positions if the following conditions occur:
    • An employee takes leave;
    • The position no longer exists due to economic conditions or other changes in operating conditions caused by a public health emergency;
    • The employer makes reasonable efforts to restore the employee to an equivalent position; and, if those efforts fail,
    • The employer otherwise makes reasonable efforts to inform the employee of an equivalent position becoming available. 

Effective Dates.  The EFMLEA becomes effective on April 2, 2020, and expires on December 31, 2020.

Emergency Paid Sick Leave Act

The FFCRA also requires certain employers to provide paid sick leave to employees who are impacted by COVID-19.

Covered Employers.  The Emergency Paid Sick Leave Act requires private employers with “fewer than 500 employees” and public employers to provide paid sick leave to eligible employees.  The Secretary of Labor has the authority to exempt small businesses with fewer than 50 employees from the paid sick leave requirements if the requirements would jeopardize the viability of the business.

Eligible Employees.  The Emergency Paid Sick Leave Act applies to all employees who are employed by covered employers, regardless of the length of the employee’s employment.  Thus, even new employees are eligible for this leave.  The Act does, however, permit exceptions from coverage for employees who are health care providers or emergency responders.  

Paid Sick Leave Eligibility.  The Act permits eligible employees to utilize paid sick time if the employees cannot work (or telework) because the employee is:

  1. Subject to a Federal, State, or Local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. Caring for an individual who is subject to an order to quarantine or isolate or who has been advised to self-quarantine due to concerns related to COVID-19;
  5. Caring for a son or daughter if the child’s school or place of care has been closed or the childcare provider is closed due to COVID-19 precautions;
  6. 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.

Paid Sick Leave Entitlement.  Full-time employees are entitled to 80 hours of paid sick leave.  Part-time employees are entitled to the number of hours that the employee works, on average, over a two-week period.

Limit for Paid Sick Leave Wages.  The Act caps paid sick time to $511 per day and $5,110 for employees who are experience symptoms of COVID-19 or subject to quarantine/isolation or $200 per day and $2,000 for employees who are caring for another individual or child.

Effective dates.  The Emergency Paid Sick Leave Act goes into effect on April 2, 2020, and expires on December 31, 2020.

If you have any questions or concerns about COVID-19 and its implications for your business and employees, Montgomery McCracken’s Labor and Employment attorneys are available to assist. Visit the firm’s Coronavirus (COVID-19) Resource Center for more information and updates on this constantly evolving situation.