Moses & Singer LLP

The Federal Government Mandates Paid Sick and Family Leave In Response to COVID-19

March 26, 2020

By: Kimberly Klein and Robert D. Argen

On March 18, 2020, the federal government enacted the Families First Coronavirus Response Act (the “Act” or “FFCRA”), which provides paid sick and family leave for workers struggling as a result of the Coronavirus.  The Act, which is comprised of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, among other provisions, applies to most employers with fewer than 500 employees and is effective April 1, 2020 through December 31, 2020.  Employers will get the money back in a payroll tax credit.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act  (“EPSL”) requires employers to provide up to 80 hours of paid sick time (prorated for part-time employees) who cannot work or telework where the employee:

  1. is subject to a coronavirus quarantine or isolation order;
  2. has been advised by a health care provider to self-quarantine due to coronavirus concerns;
  3. is experiencing symptoms of coronavirus and is seeking a medical diagnosis;
  4. is caring for an individual described in (1) or (2) above (not just limited to family members);
  5. is caring for a child whose school or place of care is closed, or the child care provider of the child is unavailable, due to coronavirus precautions; or
  6. is experiencing any other substantially similar condition specified by HHS in consultation with the Treasury and Labor Departments.

If the leave concerns the employees own health or quarantine (scenarios 1-3 above), the employee is paid at the worker’s regular rate of pay capped at $511 per day (or $5,110 in the aggregate).  If, however, the leave is to care for an individual or concerns an applicable childcare issue (situations 4-6 above), employees are paid two-thirds of their regular rate of pay capped at $200 per days (or $2,000 aggregate).

The paid sick leave is in addition to accrued, unused leave, and employers cannot require workers to exhaust other available paid leave before using the sick time provided under the EPSL.

Emergency Family and Medical Leave Expansion Act

In addition to the two weeks of sick leave, the Act expands the Family and Medical Leave Act (FMLA).  Employees employed for at least 30 days can take an additional 10 weeks of protected FMLA leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.  The total FMLA leave combined that an employee can take remains 12 weeks.

While paid family leave does not begin until week three of the FMLA leave, employees may use paid sick leave under EPSL or substitute accrued, unused leave for the first two weeks of the FMLA leave.  The 10 weeks of paid family leave is paid at two-thirds of the employee’s regular rate of pay, capped at $200 per day or $10,000 for the 10 weeks (or $12,000 for the 12 weeks).

An employee returning from leave must be restored to the same or equivalent position.  Employers with fewer than 25 employees may be excluded if, upon return, the position held by the employee no longer exists due to economic conditions or other changes caused by a “public health emergency” (e.g., COVID-19) during the leave, and the employer makes “reasonable efforts” to restore the employee.

Small businesses with fewer than 50 employees may qualify for exemption from the 10-week paid family leave if the leave requirements would jeopardize the viability of the business as a going concern.  Likewise, healthcare providers or emergency responders may elect to exclude such employees from these provisions.

Both employers and employees have notice requirements.  Employers must post a notice regarding the COVID-19 paid sick leave benefits, and the DOL will publish a model notice.  Employees are required to give as much notice as practicable when requesting leave, and employers can ask for updated status reports during the leave period.

New York employers should be aware that on March 18, 2020, New York State enacted a paid sick leave law (“NYS PSL”) which became effective immediately and, to the extent it overlaps with the FFCRA, is intended to supplement the Act.  The Act, however, is not retroactive.

The DOL will be issuing regulations providing further guidance on the Act.  Moses & Singer attorneys will keep you updated.  For more information on the FFCRA or NYS PSL, please contact me at (212) 554-7853 or kklein@mosessinger.com.

 

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