FAQ: Emergency Paid Sick Leave Act

Updated MARCH 25, 2020

NOTE: This webpage and article will be updated regularly as the law is further clarified by the Department of Labor. 

 

By William E. Gaar, SPHR
and Jillian A. Pollock
Attorneys & Shareholders

 

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 (“Emergency Paid Sick Leave Act”).

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, Employers should consider the Paid Sick Leave Act effective on April 1, 2020.  The law was to become effective not later than fifteen (15) days after being signed into law by President Trump.  Based on the DOL’s guidance, they now have moved that date to April 1, 2020.

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 Emergency Paid Sick Leave Act.

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.” Thus, if you have fewer than 500 full and part-time Employees, each of your Employees is eligible for the paid leave benefit under the six listed circumstances above.

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 appears to assume 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.

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.

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.

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, 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, 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.

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