President Donald J. Trump signed the Families First Coronavirus Response Act on March 18, 2020. The new law is effective April 2, 2020 and applies to all employers with less than 500 employees and requires covered employers to provide up to 80 hours of paid sick time related to COVID-19. An employer may exclude an employee who is a healthcare provider or an emergency responder from eligibility for this benefit.
This E-Alert is to provide our clients and friends with an overview of the new law. However, it is important for employers to avoid a myopic approach when applying the complex federal and state patchwork of protective legislation to this unprecedented situation. Although hard to believe, lawsuits are already being filed against employers who have misstepped despite trying to do the right thing for their employees as well as for their business to survive.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act (the “eSick Time”) requires covered employers to provide 80 hours of paid sick time (“Emergency Paid Sick Leave”) to each of its full time employees or the equivalent of the average number of hours worked in a two week period for part time employees. The time does not have to be accrued, and is not paid upon separation from employment. The law will take effect April 2 and expire on December 31, 2020.
When Must an Employer Provide Emergency Paid Sick Leave?
Sick time must be provided if:
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 seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in paragraph (1) or has been advised as described in paragraph (2).
5. 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.
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.
How Much Emergency Paid Sick Leave Must an Employer Provide?
Emergency paid leave is calculated as follows:
1. Full time employees are entitled to 80 hours.
2. Part time employees are entitled to the average number of hours worked over a two week period
3. Paid sick leave is paid at the employee’s “regular rate”, but capped at $511 per day and $5,110 in the aggregate for uses listed under paragraphs 1, 2 or 3 above; and capped at $200 per day and $2,000 in the aggregate for uses described in paragraphs 4, 5, or 6 above.
In the final bill, the Senate removed a provision which would have precluded employers from amending their current polices and benefits in response to the law. However, an employer may not require an employee to use other benefits before taking paid sick time under the new law. Employers also cannot require the employee to find staff coverage for their absence.
Covered employers must pay this benefit, but will be eligible for a tax credit. The absence is job protected, and employers who fail to pay this benefit will be deemed to have violated the minimum wage provisions of the federal Fair Labor Standards Act.
Multi-Employer Collective Bargaining Agreements
An employer signatory to a multiemployer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations by making contributions to a multiemployer fund, plan, or program based on the hours of paid sick time each of its employees is entitled to under the new law while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement and for the uses specified under the law.
Post a notice in the workplace (Model Notice to be issued by the DOL within 7 days), and review employer policies concerning calling in absences and other paid benefits. Employers may require employees to follow notice procedures in reporting absences in order to be paid after the first day of absence. The new federal e-Sick Time law is in addition to any other employer provided benefits under employer policies, or sick time required under state or local laws. Massachusetts requires employers to pay up to 40 hours of sick time, accrued at the rate of 1 hour for every 30 worked.
© March 19, 2020