The Emergency Paid Sick Leave Act (“Act”) was passed on March 18, 2020. The Act takes effect no later than April 2, 2020 and ends on December 31, 2020. The Act is part of the Families First Coronavirus Response Act. A copy of the full text and history of the Act can be found online at Families First Coronavirus Response Act.

The Act applies to any employer who has fewer than 500 employees. However, the Department of Labor has ability to exempt those small business with fewer than 50 employees if compliance with the Act would jeopardize the viability of the small business.

Employers are required to post a flyer in a visible and conspicuous location notifying employees of their rights under the Act. The Secretary of Labor is to release an approved flyer within 7 days after the Act goes into effect.

Sick Leave Based on Qualifying Need Related to Public Health Emergency.

An employer is required to provide paid sick time to each employee to the extent that the employee is unable to work (or telework) due to a need for leave because:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  • The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  • The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child-care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  • The employee is 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.

Requirements of Paid Sick Leave Under Emergency Paid Sick Leave Act

In the event that an employee needs to request leave, the employee must notify the employer as soon as the employee reasonably believes that they will need to request leave. After the first workday (or sick day) that an employee receives paid sick leave for, an employer can require the employee to follow reasonable notice procedures in order to continue to receive such paid sick leave.

It is important to note that an employer cannot require that an employee, as a condition to receiving paid sick leave, search for or find a replacement to cover the shifts/hours of work that the employee will miss while on leave.

Duration of Leave

The duration of the paid sick leave to be provided varies based upon the type of employee. A full-time employee is entitled to 80 hours of paid sick leave while a part-time employee is entitled to a number of hours equal to what they normally work over a 2-week period.

The leave available under the Act is available for immediate use, regardless of how long the employee has worked for the employer, whether it be a day or a month. An employer cannot require an employee to use other paid leave available to the employee before using the paid sick leave provided under the Act.

It should be of some relief to employers that the leave available under the Act expires and will not carry-over to next year (2021); if it is not used, it is lost.

Compensation To Be Paid During Leave

The amount to be paid varies based upon the employee and is a multiple step process.

Step 1: Determine Rate of Pay

General Rule: The amount to be paid to an employee is required to be the greater of: (i) the employee’s regular rate of pay (as determined under the Fair Labor Standards Act of 1938 (“FLSA”); (ii) the minimum wage rate in effect under the FLSA; and (iii) the minimum wage rate for such employee in the State of locality where such employee is employed.

Special Rule for Care of Family Members: If an employee is taking paid sick leave for reason #4, #5, or #6 above, the rate to be paid to such employee is only required to be 2/3rd of the amount due to such employee under the general rule above.

Step 2: Calculate Required Hours

If the employee works a set schedule, an employer should use the number of hours the employee would otherwise be normally scheduled to work during such leave period. If the employee’s schedule varies, an employer should use the number of hours the employee was scheduled on average over the 6-month period prior to the leave request to calculate the wages to be paid. If any employee has not been employed for 6 months, an employer should use the number of hours a day that the employee was reasonably expected to work at the time of hiring.

Step 3: Calculate Sick Pay Due

The amount to be paid to an employee should be calculated using the following formula: Wages to Be Paid = Wage Rate x Required Hours.

The Act provides some relief for employers and limits the amount to be paid to each employee to $511 per day and $5,110 total for those employees who are on leave under reasons #1 – #3 above and to $200 per day and $2,000 for those employees who are on leave under reasons #4 – #6.

Special Provisions Within the Emergency Paid Sick Leave Act for Health Care Providers and Emergency Respondents

The Department of Labor has the ability to exclude certain health care providers and emergency respondents from the definition of “eligible employee” under the Act. In addition, an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the Act.

Definitions Under the Emergency Paid Sick Leave Act

To assist in understanding the Emergency Paid Sick Leave Act and the changes made by it, Congress provided the following definitions:

The term ‘‘employee’’ has the same meaning given such term in section 3(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)).

Discrimination and other Violations Under the Emergency Paid Sick Leave Act

The Act expressly prohibits the taking of any discriminatory or retaliatory action against any employee as result of said employee taking FMLA leave under the Act, for reporting any violations of the Act, and/or for testifying or instituting proceedings related to the Act. Any violation of the Act will be treated as a violation of the FMLA

Should you have any questions about business law or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.


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