In addition to my blog about the Emergency Family and Medical Leave Expansion Act (EFMLA), the Families First Coronavirus Response Act (Families First Act or FFCRA) also contains the Emergency Paid Sick Leave Act (EPSLA).  Emergency paid sick time (EPST) will go into effect 15 days after the Families Act is enacted – April 1, 2020. The EPSLA applies to employers with less than 500 employees and generally works as follows (obviously summarized here for your reading pleasure):

  • Every employee is entitled to employer-paid sick time if they are unable to work (or telework) because of COVID-19 and they are:
    1. Subject to a quarantine or isolation order.
    2. Advised to self-quarantine by a health care provider.
    3. Experiencing symptoms.
    4. Caring for an individual subject to (1) or (2) above.
    5. Caring for a son or daughter whose school or child care was closed or whose child care provider is unavailable.
    6. Experiencing any other “substantially similar condition”.
  • Full-time employees are entitled to 80 hours of paid sick time.
    • The definition of “employee” and “employer” under the EPSLA are too specific for this general blog audience. If your business is in a unique situation, read the Act or call an attorney for interpretation.
  • Part-time employees are entitled to “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.”
  • Caps on paid sick time – employers do not need to pay more than:
    • $511 per day and $5,110 in the aggregate for the use for reasons 1-3 above.
    • $200 per day and $2,000 in the aggregate for the use in reasons 4-6 above.
  • Rates to pay:
    • The employee’s regular rate (as defined by the FLSA) or minimum wage, whichever is greater.
      • For part-time employees, it is an average (see the Act).
    • For paid sick time related to reasons 4-6 above, the required compensation is only 2/3rds of the employee’s regular rate.
  • Employers signatory to a multiemployer bargaining agreement may make contributions to the multiemployer fund, plan or program (see the Act for more details).
  • Does not carry over into 2021.
  • Paid sick time “shall cease beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time” set forth in 1-6 above.
  • Employers may not require employees to find a replacement for their shift.
  • Paid sick time must be available to the employee “immediately” regardless of how long the employee has been employed by the employer.
  • Employees may first use paid sick time before PTO, vacation/sick time – and cannot be forced to first use other paid time off banks if available. A word of caution – given the generous nature of the leave, I think it is safe to presume that any employee who uses their normal paid time off instead of paid sick time is going to draw some red flags in an investigation that they were not allowed to use paid sick time (because why would they? There is zero upside to an employee using PTO versus paid sick time for one of the reasons above).
  • Notice poster must be posted (the DOL will have a notice available with 7 days).
  • Shocker…employers cannot retaliate or discriminate against employees who use this leave or file a complaint about the same.
  • Violation is considered the same as violating minimum wages and unlawful termination under the FLSA. Which means employers who violate this Act are liable for the backwages – doubled, plus having to pay an employee’s attorneys’ fees (plus your own attorneys’ fees, among other things). In other words, you don’t want to mess this up…
  • The DOL Secretary must issue guidelines within 15 days following enactment.
  • After any portion of the first workday that an employee receives paid sick time, an employer may require an employee “follow reasonable notice procedures in order to continue receiving such paid sick time”.
  • Applies to employers with LESS THAN 500 employees.  However, the DOL has the authority to issue regulations to exempt small businesses (less than 50 employees) when the imposition of paid sick time would jeopardize the viability of the business as a going concern, and certain health care providers and emergency responders.
  • The Act expires on December 31, 2020.