Emergency Paid Sick Leave Act
The recently enacted Families First Coronavirus Response Act includes the Emergency Paid Sick Leave Act (Act). Effective as of April 2, 2020, employers that employ less than 500 employees must provide additional paid sick leave to their employees for certain absences related to COVID-19 (C19 Paid Sick Leave). The Act provides full-time employees 80 hours of C19 Paid Sick Leave. Part-time employees have C19 Paid Sick Leave equal to the number of hours the employee works, on average, over a two-week period. The amount of the benefits depends on the reason for the leave. The Act is set to expire on December 31, 2020. See our post regarding information about the Emergency FMLA Expansion Act.
- Eligible use; Amount of benefits. Eligible employees may use C19 Paid Sick Leave if the employee is unable to work (including being unable to work remotely) because of any of the following reasons (each an Eligible Reason), and with the following paid sick leave benefits:
| Eligible Uses | Benefits Calculation | Benefits Cap | |
| 1 | The employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19. | Benefits are the greater of the employee’s regular rate of pay or applicable minimum wage. | $511 per day and a total of $5,110 |
| 2 | The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19. | Benefits are the greater of the employee’s regular rate of pay or applicable minimum wage. | $511 per day and a total of $5,110 |
| 3 | The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. | Benefits are the greater of the employee’s regular rate of pay or applicable minimum wage. | $511 per day and a total of $5,110 |
| 4 | The employee is caring for someone who is subject to Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. | Benefits are two-thirds of the greater of the employee’s regular rate of pay or applicable minimum wage. | $200 per day and a total of $2,000 |
| 5 | The employee is caring for someone who is subject to Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. | Benefits are two-thirds of the greater of the employee’s regular rate of pay or applicable minimum wage. | $200 per day and a total of $2,000 |
| 6 | The employee is experiencing any other substantially similar condition specified by Department of Health and Human Services. | Benefits are two-thirds of the greater of the employee’s regular rate of pay or applicable minimum wage. | $200 per day and a total of $2,000 |
- When C19 Paid Sick Leave ends. C19 Paid Sick Leave ends at the beginning of the employee’s next scheduled work shift immediately after the Eligible Reason no longer exists.
- Eligible employees. On and after April 2, 2020, all employees of a covered employer are entitled to C19 Paid Sick Leave, no matter how long they have been employed. An employer of a health care provider or an emergency responder may elect to exclude those employees from coverage under the Act.
- No carry over; no required “cash-out”. Unused C19 Paid Sick Leave does not carry over from one year to the next. The Act does not require that any unused C19 Sick Leave be paid on termination of employment.
- Employee not required to find a replacement. The employer cannot require the employee to search for or find a replacement as a condition to taking C19 Paid Sick Leave.
- An employer cannot require the use of other paid leave before taking C19 Paid Sick Leave. For example, the employer cannot require that the employee first exhaust other sick leave, vacation, or PTO.
- Notice. Employers must post notice of these rights. The Secretary of Labor will provide a model notice by March 25.
- No Retaliation. An employer may not discharge, discipline, or discriminate against any employee who uses C19 Paid Sick Leave, files any action or complaint related to the Act, or testifies or is about to testify in ay proceedings related to any action or complaint under the Act.
- Enforcement. Violations of the Act will be treated as violations under the Fair Labor Standards Act.
- Tax Credit. The tax credit is a credit applied against the employer’s payroll tax liability (up to the amount of the leave payment caps). If the credits exceed the employer’s payroll tax liability, the excess will be treated as an overpayment that may be refunded.
- Tracking. We strongly recommend that employers keep careful records of all leave used by the employee, whether C19 Paid Sick Leave, sick leave, vacation, leave, PTO, etc.
Contact Daniel Ichinaga, Nat Taylor, or Abigail St. Hilaire with any questions.