SimplyHR | Employment & Labor Blog 

Here are key provisions of the Act for employers:

Emergency Paid Sick Leave Act

The legislation requires an employer with fewer than 500 employees to provide each employee paid sick time if the employee is unable to work (including remotely) because of:

1. A federal, state or local quarantine or isolation order related to COVID-19.
2. Advice from 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 someone who is subject to a quarantine order or a health care provider’s advice to self-quarantine.
5. Caring for the employee’s child if the school or child care provider has been closed, or if the child care provider is unavailable, due to COVID-19 precautions.
6. 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.

Other key points:

• Duration– Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to the number of hours worked, on average, over a two-week period. The time cannot be carried from one year to the next.
• Termination of paid sick leave – Paid sick leave ceases beginning with the employee’s next scheduled work shift after the termination of the need for paid sick time as described above.
• Sequencing – An employee may first use the paid sick time under the Sick Leave Act. An employer cannot require that the employee use other sick leave before paid sick leave under the Act.
• Posting – Each employer must post a notice to be prepared by the Secretary of Labor within seven days after the date of enactment.
• Anti-retaliation/anti-discrimination – An employer may not discharge, discipline or discriminate against any employee who takes leave under the Act or files any complaint or proceeding related to the Act.
• Paid sick leave calculation – Calculated based on compensation and the number of hours the employee would otherwise be normally scheduled to work, not to exceed:
  • $511 per day and $5,110 in the aggregate for employees who are under quarantine (government or health care ordered) or are experiencing symptoms of COVID-19 and being tested.
  • $200 per day and $2,000 in the aggregate for employees who are caring for quarantined or sick individuals or a child whose school or child care is closed or unavailable. In addition, if paid sick leave is taken in these circumstances, it is paid at two-thirds rather than 100 percent.
• Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
  • to exclude certain health care providers and emergency responders from the definition of employee, including by allowing the employer of such health care providers and emergency responders to opt out;
  • to exempt small businesses with fewer than 50 employees from the requirements if they would jeopardize the viability of the business; and
  • as necessary, to carry out the purposes of the Act.

Family and Medical Leave Expansion Act

• Eligible employees are those who are employed for at least 30 calendar days.
• Covered employers are those with fewer than 500 employees for each of 20 or more calendar days during the current or preceding calendar year. However, an employer of an employee who is a health care provider or an emergency medical responder may elect to exclude such employee from the application of the Act.
• Purpose of leave – A qualifying need related to a public health emergency, which means “the employee is unable to work (or telework) due to a need to care for a son or daughter under age 18 years of age of such employee if the school or place of care has been closed or is unavailable due to a public health emergency. (Child care provider means a provider who receives compensation for providing child care services on a regular basis. School means an elementary or secondary school).
• Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
  • to exclude certain health care providers and emergency responders from the definition of eligible employee; and
  • to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business.
• Relationship to paid leave –
  • 10 unpaid days - The first 10 days may be unpaid, but the employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
  • Two-thirds thereafter - Leave is paid at two-thirds after the 10 days at the employee’s regular rate of pay “based on the number of hours that the employee would otherwise be scheduled work” for up to 12 weeks.
  • Maximum - In no event shall the paid leave under the FMLA Emergency Act exceed $200 per day and $10,000 in the aggregate.
  • Varying schedules – If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked, then the employer shall use a number equal to the average number of hours the employee was scheduled over the six-month period ending on the date when the employee takes leave. If the employee did not work such period, then the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
• Notice – Employees must give employers such notice of the leave as is practicable.
• Restoration to position – An employer is required to restore an employee to the position held before the leave unless: (1) the employer has fewer than 25 employees, AND (2) the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer: (i) that affect employment, and (ii) that are caused by a public health emergency during the period of leave.

Health care worker exclusion

The Paid Sick Leave Act and FMLA Emergency Act each contain provisions permitting an employer of a health care provider or an emergency responder to exclude such employees from the application of the Acts.

Effective dates

Both of the foregoing Acts take effect not later than 15 days after enactment.

Tax Credits for Paid Sick and Paid Family and Medical Leave for Employers and Self-Employed Individuals

Subject to certain limits, in the case of an employer, there shall be allowed as a credit an amount equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by the employer with respect to the calendar quarter. The Act also provides a credit for sick leave for certain self-employed individuals.

Unemployment Expansion

The Act also creates the Emergency Unemployment Insurance Stabilization Access Act of 2020, which makes millions of dollars available to the states for unemployment benefits arising from closures and layoffs due to COVID.

Our Employment & Labor Practice Group is continuing to monitor these developments and is available to answer your coronavirus questions.

Link to COVID-19 Resources page