COVID-19 Brings Sweeping, Nationwide Changes to Employee Sick Leave

COVID-19 Brings Sweeping, Nationwide Changes to Employee Sick Leave

On March 18, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The FFCRA requires employers with fewer than 500 employees to provide employees with enhanced sick leave through two new laws- the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”).  

Expansion of FMLA Leave

The Family and Medical Leave Act (“FMLA”) already provides twelve (12) weeks of unpaid, job-protected leave, but generally applies to employers with 50 or more employees. In contrast, the EFMLEA will temporarily expand the FMLA so that covered employers (those with fewer than 500 employees) must allow twelve (12) weeks of FMLA leave for use by employees who have been employed for thirty (30) days before the first day of leave.  Under the EFMLEA:
 

· The first 10 days of leave may be unpaid and employees may choose to use any accrued paid time off—including vacation days and sick days—to cover the initial 10-day period

· Employers are not  permitted to require employees to use this accrued time

· After the 10-day period is over, employers are required to pay full-time employees 2/3 of each employee’s regular rate of pay for the number of hours for which the employee would otherwise typically be scheduled (for salaried employees, employers are required to pay 2/3 of the employee’s base salary for the weeks remaining after the initial 10-day period)

· Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. 

· Pay entitlement under the EFMLEA is limited to $200 per day and $10,000 in the aggregate per employee. 
 

Leave under the EFMLEA may be used if the employee is unable to work (or telework) due to a need for leave to care for the employee's child under 18 years of age if the child's school or place of care has been closed, or the child care provider of the employee's child is unavailable, due to a public health emergency regarding COVID-19 as declared by a Federal, State, or local authority. Leave under the EFMLEA may be taken beginning on April 1, the effective date of the Act, and ending on December 31, 2020. The EFMLEA gives the United States Department of Labor ("DOL") explicit authority to exempt small businesses with fewer than 50 employees from the requirements of the EFMLEA, but it is unclear whether DOL will do so.

Emergency Paid Sick Leave

The EPSLA creates a new federal emergency paid leave benefits program.  In addition to the pay required under the EFMLEA, covered employers (those with fewer than 500 employees) are required, effective April 1, to provide employees with up to 80 hours of paid sick leave to full-time employees (at the regular rate for numbers 1, 2 and 3, below, and at 2/3 the rate for numbers 4, 5 and 6, below) or the equivalent of two (2) weeks of hours to part-time employees. Under the EPSLA, employees may take paid sick leave when the employee is:
 

1- Subject to a federal, state or local quarantine or isolation order related to COVID-19; 

2- Advised by a health care provider to self-quarantine due to COVID-19 concerns; 

3- Experiencing COVID-19 symptoms and seeking medical diagnosis; 

4- Caring for an individual [not limited to a family member] subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns; 

5- Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or 

6- Experiencing 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.
 

Paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.  Under the EPSLA, this new paid sick leave is provided in addition to whatever the employer already provides.  Employers cannot require employees to search for or find a replacement employee to cover the hours during which the employee would use paid sick time.   This paid sick leave does not carry into the following year.

Pursuant to the EPSLA, employers are required to post a notice to be issued by the DOL within seven (7) days, or by March 25.  We will forward this notice once it is available.

It is critical to understand the Families First Coronavirus Response Act in order to ensure compliance. If you have any questions or concerns about provisions of the FFCRA, including the EFMLEA or EPSLA, please reach out to the Employment and Labor Practice Group at Laddey, Clark & Ryan, LLP: Thomas N. Ryan Esq. (tryan@lcrlaw.com), Ursula H. Leo, Esq. (uleo@lcrlaw.com), or Nicole C. Tracy, Esq. (ntracy@lcrlaw.com). Our attorneys can also be reached by phone at (973) 729-1880.