Emergency Paid Sick Leave During the Coronavirus/COVID-19 Pandemic
On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act, which contains vital worker protections during the Coronavirus/COVID-19 pandemic, including a temporary Emergency Paid Sick Leave Act (“EPSLA”). The EPLSA establishes two weeks of paid sick leave for childcare, isolating or quarantining employees, and other leave. Covered employers that fail to adhere to the EPSLA face penalties. This article provides employees with information regarding their EPSLA rights during the Coronavirus/COVID-19 pandemic.
What Type of Leave Does the EPSLA Provide?
Creates temporary emergency paid sick leave accessible under six circumstances:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- A health care provider has advised the employee to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation COVID-19-related order or has been advised by a health care provider to self-quarantine due to COVID-19-related concerns;
- The employee is caring for their son or daughter where the school or daycare has been closed, or the child care provider of such son or daughter is not available, due to COVID-19 precautions;
- The employee is suffering a “substantially similar condition” as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
How Much Paid Sick Leave Time Are Employees Entitled to Under EPSLA?
Covered employees are entitled to paid sick time as follows:
- 80 hours for full-time employees; and,
- The average number of hours a part-time employee works over two weeks.
Where an employer is not able to determine with certainty part-time employee hours over two weeks, the employer may use a number equal to the average number of hours that the employee was scheduled per day over the prior six months. This calculation shall include hours for which the employee took leave of any time. Where the part-time employee, such as a new employee, did not work over the preceding six months, the employer may use the average number of hours per day that the employee reasonably expected to work.
Employees may not carry over paid sick time over subsequent years. Instead, employee paid sick time halts beginning with the scheduled work shift immediately following the conclusion of the circumstance(s), causing the employee to take paid sick leave. Similarly, the Act does not require employers to pay out unused EPSLA leave at termination, separation, or retirement.
How Quickly May Employees Exercise Their EPSLA Paid Sick Time Right?
Paid sick time under EPSLA is available for immediate use. Employees may exercise their right to EPSLA paid sick time regardless of how long they have worked for the employer.
How Much Compensation Does EPSLA Provide to Employees?
Under EPSLA, paid sick time is the employee’s regular rate of pay, or the applicable minimum wage multiplied by the number of hours the employee would otherwise be scheduled to work. However, the EPSLA imposes caps on paid sick time compensation. In no event shall paid sick time exceed:
- For employees on leave due to quarantine or isolation orders or advisements, or COVID-19-related symptoms, $511 per day and $5,110 over the total leave period; and,
- For employees on leave to care for another person or where the employee is experiencing a “substantially similar condition,” $200 per day and $2,000 over the total leave period.
An employee receiving EPSLA paid sick time must receive compensation not less than the greater of either:
- The employee’s regular rate of pay; or,
- The applicable minimum wage.
However, when caring for a family member, the required compensation under EPSLA is two-thirds of the abovementioned minimum compensation amounts.
How Long Does EPSLA Last?
EPSLA took effect on April 1, 2020, and is set to expire on December 31, 2020, unless extended. 29 USC § 2601.
Whom Does EPSLA Cover?
Under EPSLA, an employee is any individual employed by an employer, including public employers.
What Employers Does EPSLA Cover?
Public and private employers are subject to EPSLA. For private employers, EPSLA applies to entities or individuals employing fewer than 500 people. For public employers, such as a public agency, EPSLA applies to entities employing one or more employee.
Healthcare providers and emergency responder employers may elect to exclude employees from EPSLA coverage. Additionally, small businesses with fewer than fifty employees may obtain an exemption from the US Secretary of Labor from leave to care for a child whose school or childcare has closed, or where a child care provider is unavailable due to the Coronavirus/COVID-19 pandemic when such leave jeopardize the viability of the business.
What Limitations Does EPSLA Place on Employers?
The EPSLA limits employers where an employee takes paid time off. These limitations include:
- The employer may not require, as a condition of providing paid sick time, that the employee search for or find a replacement employee to cover their hours;
- The employer may not require an employee to use other paid leave provided by the employer before using EPSLA paid sick time;
- The employer may not discharge, discipline, or discriminate against any employee that takes EPSLA paid sick leave, files a complaint regarding the employer’s EPSLA noncompliance, files a lawsuit against the employer for EPSLA noncompliance, or participates in a legal proceeding.
What Notices Must Employers Provide Regarding EPLSA Rights?
Under the EPSLA, employers must post, in conspicuous places, a US Secretary of Labor approved or prepared notice of EPSLA rights.
What Penalties Are Available for EPSLA Violations?
An employer that violates the EPSLA’s paid sick leave provisions is considered to have failed to pay minimum wages and subject to the Fair Labor Standards Act of 1938 penalties. An employer that retaliates against an employee, including through wrongful termination, for exercising EPSLA rights is subject to Fair Labor Standards Act penalties.
If you believe that your employer has violated the EPSLA, contact Astanehe Law. Astanehe Law has experience representing California employees who have been discriminated against and suffered retaliation because of their family status, or disability. Astanehe Law represents clients on a contingency fee basis. Call us at (415) 226-7170 or email us at firstname.lastname@example.org.
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