President Trump signed the Families First Coronavirus Response Act (H.R. 6201) on March 18, 2020. It becomes effective on April 1, 2020.
The Act contains eight Divisions. This memorandum will address Division E – Emergency Paid Sick Leave Act. Other memoranda will address other Divisions of the Act.
Emergency Paid Sick Leave
Coverage. An employer must provide its employee with EPSL under certain conditions and for a certain duration.
A covered employer is defined as a person engaged in commerce who employs fewer than 500 employees. “Engaged in commerce” is a term of art and may exclude very small employers whose business does not affect interstate commerce.
An employer is also defined as a public agency with one employee.
The term employee is defined the same as under the Fair Labor Standards Act (“FLSA”). It is a person who is suffered or permitted to work by an employer. The term excludes volunteers and independent contractors. However, a worker who is misclassified as an independent contractor is an employee and is entitled to benefits under the Act.
Conditions of Coverage. The law does not impose a requirement that an employee work for any particular time before (s)he is eligible. An employee is eligible for EPSL if (s)he is unable to work due to a need for leave because of:
1. The employee is subject to a quarantine or isolation order related to COVID-19;[1]
2. A health care provider advised the employee to self-quarantine due to concerns about COVID-19;
3. The employee is experiencing COVID-19 symptoms and seeks a medical diagnosis;
4. The employee is caring for an individual who is subject to an order described in subsection 1;
5. The employee is caring for his/her son or daughter if school or the place of care has been closed, or the child care provider[2] is unavailable due to COVID-19 precautions; or
6. The employee is experiencing substantially similar conditions specified by the Secretary of Health and Human Services.
Duration of Paid Sick Leave. In the event the employee meets the conditions of eligibility, then then (s)he is entitled to a maximum of 80 hours of paid time off. If the employee is part-time, (s)he will be entitled to the number of hours the employee works, on average, over a two-week period.
If the part-time employee’s schedule varies from week to week, the maximum paid leave available equals the average number of hours the employee was scheduled per day over a six-month period ending on the date the employee takes EPSL. (This calculation should include the number of hours the employee took leave of any kind.) If the employee did not work over a six-month period of time, the employer should use the reasonable expectation of hours to be worked at the time of hiring.
The employee must return to work on the next scheduled workshift immediately following the termination of the need for EPSL.
Rate of Pay for ESPL. The rate of compensation for EPSL will depend on the employee’s work schedule and on his/her purpose for the leave. The rate is also subject to certain caps.
As a general rule, an employer is required to pay its full-time or part-time employee the greater of: (1) The employee’s regular rate of pay[3]; or (2) the state minimum wage for the number of hours the employee would normally be scheduled to work.
However, the amount an employer is required to pay caps at $511 per day and $5,110 in the aggregate for a use described in 1, 2 or 3 of the section entitled, Conditions of Coverage. The amount an employer is required to pay caps at $200 per day and $2,000 in the aggregate for a use described in 4, 5 or 6 of the section entitled, Conditions of Coverage.
Tax credits are available for payments made for EPSL.
Retaliation. The law protects an employee from retaliation for the following reasons:
· An employee takes EPSL; or
· An employee has filed a complaint related to this Act; or
· An employee has testified or is about to testify in a proceeding related to this Act.
Douglas M. Larsen
(559) 256-5000
[1] Various members of the House who passed the law have claimed that a “shelter in place” order is the equivalent of a “quarantine or isolation order.”
[2] Child care provider means a provider who receives compensation for providing child care on a regular basis. Thus, this could exclude many extended family members who provide child care for free.
[3] Regular rate of pay is a legally defined term. It includes all of the employee’s compensation, including bonuses and commissions. Calculating the regular rate of pay can be complicated!