NOTE: This webpage and article will be updated regularly as the law is further clarified by the Department of Labor.
RELATED ARTICLE: FMLA EXPANSION ACT – FAQ
On March 18, 2020, as a direct result of the ongoing COVID-19 pandemic, President Trump signed the Families First Coronavirus Response Act (“Act”) into law. This new Act is also known as HR 6201. The two key laws that will impact many Employers are the: (1) Emergency Family and Medical Leave Expansion Act (“FMLA Expansion Act”); and (2) Emergency Paid Sick Leave Act (“PSLA”).
Buckley Law’s Employment Group has been closely following new federal and state laws and emergency orders as they develop to keep its clients up to date in an ever-changing environment. Below are the highlights found in the FMLA Expansion Act and the Emergency Paid Sick Leave Act as they apply to businesses and Employees.
When does the Emergency Paid Sick Leave Act become effective? Based on the Department of Labor’s recent guidance, the PSLA is effective on April 1, 2020. As a result, covered Employers must offer PSLA to eligible employees. Further, keep in mind that regardless of the effective date, Employers should be tracking all leave local and state leave laws applicable to their business in order to avoid COVID-19 related liability.
What does the Emergency Paid Sick Leave Act require an Employer to do? The Emergency Paid Sick Leave Act requires an Employer to provide its Employees with paid leave for up to two weeks when the Employee is unable to work or telework for any of the following reasons: (1) A local, state or federal order limits the Employees ability to work; (2) The Employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns (this could be because of the Employee or someone the Employee has contacted); (3) The Employee has COVID-19 symptoms and is seeking a medical diagnosis; (4) The Employee is caring for someone subject to an order or advice described in (1) or (2) above; (5) The Employee is caring for a son or daughter whose school or daycare is closed or the child provider is unavailable due to COVID-19; and, the catchall, (6) The Employee is experiencing any condition substantially similar to a condition specified by the Government as related to COVID-19.
Are all Employers covered by the Emergency Paid Sick Leave Act? As with the FMLA Expansion Act, Employers employing less than 500 Employees are required to comply with the PSLA. However, the DOL Guidelines recently clarified that an Employer with less than 50 Employees may not be covered by the PSLA if the leave obligations will jeopardize the viability of the business as a going concern. A fact specific inquiry regarding the viability of a business operating at minimal capacity will be necessary to determine if your business is a covered entity under this small Employer exemption. Employers intending to use the small Employer exemption are advised to seek advice from experienced Employment Law counsel prior to denying benefits based on this exception.
Are all Employees covered by the Emergency Paid Sick Leave Act? An Employee is eligible for the paid leave benefit “regardless of how long the Employee has been employed by an employer.” However, the DOL Guidelines recently clarified that employees who perform work as “health care providers” and “emergency responders” may be exempted by their employer from PSLA benefits. Health care providers includes individuals who are employed “at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity.”
How much paid leave are my Employees entitled to receive? Full-time Employees are eligible for eighty (80) hours of paid leave. Part-time Employees are eligible for paid leave equal to an average number of hours worked or anticipated to be worked in a two week time period. Remember, the workweek is defined as a seven day time period. While the Act fails to define a part-time and full-time Employee, based on the amount of leave that is available to each, the Act assumes a full-time Employee is one who is regularly scheduled to work forty (40) hours in a given workweek. And, a part-time Employee is one scheduled to work less than forty (40) hours in the given workweek.
How is an Employee’s Emergency Paid Sick Leave calculated? An Employee is to be paid their regular rate of pay (which can’t be below the local, state or federal minimum wage – whichever is higher) based on the number of hours the Employee “would otherwise normally be scheduled to work” all subject to daily and aggregate caps and based on which of the six specific reasons the Employee is on leave. For circumstances 1-3 above, regardless of the rate of pay calculation, the daily paid leave is capped at $511 per day. The total aggregate paid leave is capped at $5,110. If an Employee is caring for a family member under circumstances related to 4-6 above, the Employee is to be paid two-thirds of his regular rate. For circumstances 4-6 above, regardless of the rate of pay calculation, the daily cap is $200 a day. The aggregate cap is $2,000.
Can an Employer require an Employee to use accrued available paid vacation, sick, health or personal leave prior to using the new Emergency Paid Sick leave? An Employer is prohibited from requiring an Employee to use any other available paid leave prior to using Paid Sick Leave under the Emergency Paid Sick Leave Act. Keep in mind that local, state or even privately provided paid leave may qualify for one of the six circumstances that trigger leave. As a result, an Employee will be able to stack available leave and extend the paid leave period beyond the time period available as a result of the Emergency Paid Sick Leave Act. However, an Employee may not double up on both other available paid leave such as a leave bank and use the Emergency Paid Sick Leave.
Can qualified Employees receive Paid Sick Leave in partial amounts or are Employers required to pay the full amount of leave? Qualified Employees who begin taking leave for a CV-19 related quarantine reason (leave basis #’s 1 – 4) and who cannot telework because of the job requirements, must use and Employers must provide the full leave allotment (80 hours or a functional equivalent of the employees average hours worked in a six month period) in order to maintain the quarantine status of the Employee. If, however, under these circumstances, an Employee is taking leave to care for a child based on a closed school, daycare or unavailable child care provider, an Employer may agree to allow the Employee to work intermittently. Paid leave is then available only when the Employee is unable to work due to a CV-19 related reason.
Is an Employee’s right to Paid Sick Leave ever terminated while the law is in effect? If the need for paid leave (i.e. 1-6 listed above) ends, the Employer’s obligation to provide paid leave terminates “beginning the next scheduled work shift following the termination of the need for [the paid sick leave]”. However, if one or more of the reasons is triggered again, an Employer’s obligations under the Paid Sick Leave Act renews until the law itself has terminated. See Sunset Timing below.
Is there an end date when Employers are no longer required to offer Paid Sick Leave? The Paid Sick Leave requirement is supposed to sunset on December 31, 2020. However, Employers will be wise to track the status of any state or federal legislation in December to determine if Congress allows the law to sunset. Based on the current DOL Guidelines, the PSLA will sunset as anticipated. Congress may have a different idea depending on circumstances as they appear at the end of this year.
Am I required to give my Employee’s notice of the Emergency Paid Sick Leave law? Employers are required to post notices in conspicuous places where notices are customarily posted. The Notice must be prepared for or approved by the Secretary of Labor. The Secretary of Labor is required to provide a publicly available notice no later than March 26th. Employers should be able to obtain the notice at the U.S. Department of Labor’s website beginning no later than March 26. Buckley Law also advises that Employers consider adding the new leave provisions to their employee handbooks with language stating that, unless continued by the federal government, the leave is only available through December 31, 2020. The DOL Guidelines also inform Employers that under certain circumstances the DOL will provide up to 30 days grace period to comply with the Act. Consult with experienced Employment Law counsel to determine if the grade period applies to your business and the risk associated with failing to give Notice and comply with the PSLA starting on April 1, 2020.
As with all your Employment Law matters, seek guidance from an experienced Employment Law attorney. Buckley Law’s Employment Group will continue to monitor Washington and Oregon’s local and state laws as well as the federal employment laws as we work our way through this crisis. We are here to partner with you. If you have questions or need legal assistance on employment law, please contact William E. Gaar or Jillian A. Pollock at 503-620-8900 or visit our website at www.buckley-law.com.
William E. Gaar, SPHR
William E. Gaar, SPHR, is a shareholder in the firm’s employment law practice group. He is an advocate and litigator for his business and employer clients, providing practical solutions to everyday concerns and protecting his clients’ rights in state and federal court, private arbitration and mediation, and before state and federal agencies. Well versed in all areas of employment and commercial/consumer law, he has assisted every size of organization.
Jillian A. Pollock
Jillian A. Pollock is a shareholder in the firm’s employment law practice group. Her practice includes representing employers in federal and state court proceedings and in administrative proceedings. Her practice also includes employment counseling.
This material is provided for informational purposes only. The provision of this material does not create an attorney-client relationship between the firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this article are not a substitute for legal counsel. Do not take action in reliance on the contents of this material without seeking the advice of counsel.