FFCRA: Emergency Paid Sick Leave Act

March 20, 2020

When is the Act effective?

The effective date of the Emergency Paid Sick Leave Act under the FFCRA is April 1, 2020. The FFCRA is effective through December 31, 2020.

Who is a “covered employer”?

Private employers with fewer than 500 employees and public sector employers with one or more employees. Small businesses with fewer than 50 employees whose viability is jeopardized by providing paid sick leave may be exempted if the Secretary of Labor issues regulations providing an exemption. To date, no regulations have been issued.

Who is an eligible employee?

Employees are able to take this paid leave regardless of the length of their service with their current employer. Paid sick leave is available to an employee of a covered employer who is unable to work or telework due to a need for leave because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. 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);
  5. The employee is caring for a son or daughter 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; or
  6. 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.

Except that, the Secretary of Labor has authority to issue regulations to exclude certain health care providers and emergency responders, for instance, by allowing an employer of such employees to opt-out. To date, there are no regulations. An employer of a health care provider or emergency responder may also elect to exclude an employee from application of the Paid Sick Leave Act.

How much paid sick leave must be provided?

Full-time employees of covered employers are entitled to up to 80 hours of emergency paid sick leave; part-time employees of covered employers are entitled to an amount of emergency paid sick leave up to the average number of hours they work over a two-week period.

An employer cannot require an employee to use other employer-provided leave available to the employee before the employee uses paid leave available under the Act. In other words, employees are entitled to use paid sick leave available under the Act before other paid leave provided by their employer.

Paid sick leave under the Act is in addition to any paid leave benefits available to employees under other federal, state, or local law, under any collective bargaining agreement, or under any existing employer policy.

What level of compensation is required?

Employees using emergency paid sick leave must be paid at no less than the greater of: 1) employee’s regular rate of pay, as defined under the Fair Labor Standards Act;* 2) the minimum wage in effect under the FLSA; or 3) the state or local minimum wage in effect. Sick leave is calculated based on the number of hours the employee would otherwise normally be scheduled to work, except that compensation is limited to no more than $511 per day and $5,110 total for employees taking leave under reasons 1, 2, or 3 (above).

For employees taking leave for reasons 4, 5, or 6 (above), employees must be paid 2/3 of the paid sick leave amount described in the preceding paragraph. Pay for sick leave is capped at $200 per day and $2,000 total.

Guidelines to assist employers to calculate the amount of paid sick leave are scheduled to be issued by the Secretary of Labor no later than 15 days after the Act’s enactment.

*Keep in mind that the FLSA regular rate of pay can be greater than an employee’s hourly rate of pay.

Are there notice requirements under the Act?

Yes. Employees may be required to follow reasonable notice procedures after the first workday, or portion of a workday, that the employee receives paid sick leave.

Covered employers will be required to post a notice, in conspicuous places on the premises where employment notices are typically posted. A model notice is scheduled to be issued by the Secretary of Labor no later than 7 days after enactment.

For more information about "FFCRA: Emergency Paid Sick Leave Act," contact Michael J. Modl at mmodl@axley.com or 608.283.6702 or Leslie A. Sammon at lsammon@axley.com or 608.283.6798 or Troy D. Thompson at tthompson@axley.com or 608.283.6746 or Michael J. Westcott at mwestcott@axley.com or 608.283.6722.