Paid Sick Time Under the Families First Coronavirus Response Act

By Marian Zapata-Rossa

Early on March 14, 2020, the U.S. House of Representatives passed House Bill 6201, titled the “Families First Coronavirus Response Act.”  The bill, or some version of the House's package, may be voted on by the U.S. Senate early this week. If passed by the Senate, Section 5101 of the bill, the “Emergency Paid Sick Leave Act” will require employers with fewer than 500 employees to grant employees paid sick leave for various reasons related to the infection, quarantine, and mitigation of COVID-19.

The following Questions and Answers address several issues related to employers’ obligations under the Emergency Paid Sick Leave Act if it becomes law as passed by the U.S. House.

Which private employers are covered?

The Act covers all private employers (including individuals) that: (1) are engaged in commerce or in any industry or activity affecting commerce; and  (2) employ fewer than 500 employees. 

Which employees are eligible for emergency paid sick time?

The Act has adopted the broad definition of “employee” used under the Fair Labor Standards Act, which covers any individual employed by a private employer. 

What are the qualifying reasons for which employees may use emergency paid sick time?

Employees may use emergency paid sick time for any of the following reasons:

1. To self-isolate because the employee has been diagnosed with COVID-19.
2. To obtain medical diagnosis and care if the employee is experiencing symptoms of COVID-19.
3. To comply with a recommendation or order by a public official with jurisdiction or a healthcare provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of:
   • (A) the exposure of the employee to COVID-19; or
   • (B) exhibition of symptoms of COVID-19 by the employee.
4. To care for or assist a family member of the employee who:
   • Is self-isolating because the family member has been diagnosed with COVID-19.
   • Is experiencing symptoms of COVID-19 and needs to obtain medical diagnosis and care.
   • Must comply with a recommendation or order by a public official with jurisdiction or a healthcare provider on the basis that the physical presence of the family member in the community would jeopardize the health of others because of:
     • (A) the exposure of the family member to COVID-19; or
     • (B) exhibition of symptoms of COVID-19 by the family member.
5. To care for the employee’s child because the child’s school or place of care has been closed or the child’s child care provider is unavailable because of COVID-19.

Family members include the employee’s spouse, domestic partner, child, and parent. The Act also allows employees to care for or assist any of their siblings, next of kin, grandparents or grandchildren, for the allowable reasons above, if such individual is pregnant, a senior citizen, disabled, or has access or functional needs. 

How much emergency paid sick time are employees entitled to receive?

Full-time employees must receive 80 hours of emergency paid sick time.

Part-time employees must receive a number of hours equal to the number of hours the employee works, on average, over a two-week period. 

How is emergency paid sick time compensation calculated?

While taking emergency paid sick leave, an employee should be paid for the number of hours they would otherwise be normally scheduled to work at the greater of their regular rate of pay, or the federal, state, or local minimum wage in effect for the state or locality where the employee works. Emergency paid sick leave taken to care for family members or children, however, is compensated at two-thirds of this amount.

Special rules also apply for calculating the compensation of part-time employees who work a schedule that varies from week-to-week. 

Additional guidelines on calculating emergency paid sick time compensation are expected from the U.S. Secretary of Labor.

When must emergency paid sick time be made available to employees?

If the Act is passed, employers will have 15 days from the date of enactment to make emergency paid sick time available for immediate use by employees, regardless of how long they have worked for the company.

Can employers require employees to provide notice of their need to take emergency paid sick time?

Yes.  Employers may require employees to follow reasonable notice procedures, but only after the first workday (or portion thereof) that the employee receives emergency paid sick time.

Do employers have any notice requirements?

Yes.  If the Act is passed, within seven days of the date of enactment, the U.S. Secretary of Labor will make a model notice available, which employers will be required to post in a conspicuous place in the workplace where employee notices are customarily posted. 

Can unused emergency paid sick time be carried over to the following year?

No.  The Act includes a sunset provision under which it is scheduled to automatically expire on December 31, 2020.

When can employers terminate an employee’s emergency paid sick time?

Employers may terminate employee’s paid sick time beginning with the employee’s next scheduled work-shift immediately after the employee’s need for emergency paid sick time ceases. 

What if the company already has an existing paid sick time, paid time off, or other paid leave policy?  May the company count existing time off toward emergency paid sick time?

No.  Regardless of any paid leave policy the company may already have in place for employees, if the Act is passed, employers must grant employees additional emergency paid sick time as required under the Act. On or after the date of enactment, employers also may no longer change existing paid leave policies to avoid having to offer the additional time off.

If the company has an existing paid leave policy, employees must first be allowed to use their emergency paid sick time before they are required to use any allotments under the existing policy.  

Can employers require employees to find a replacement to cover their hours while they are taking emergency paid sick time?

No.

Does the Act contain an anti-discrimination provision?

Yes.  The Act prohibits employees from being discharged, disciplined, or discriminated against for taking emergency paid sick leave, filing a complaint or instituting a proceeding to enforce the Act, or testifying in such a proceeding.

May employers face penalties for violations of the Act?

Yes.  Employers that fail to provide employees with emergency paid sick time may be subject to liability, including for, unpaid wages, liquidated damages, attorneys’ fees and costs. Employers that willfully violate the anti-discrimination provision, may be subject to additional legal and equitable damages.

May the company receive a tax credit for the emergency sick time it pays employees under the Act?

Yes. The Act contains a provision granting tax credits to offset the costs of providing emergency paid sick time.

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