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Employer Obligations and Notice Requirements under the Emergency Paid Sick Leave Act



On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which takes effect April 1, 2020, and will remain in effect through December 31, 2020. Among other things, the FFCRA seeks to assist both employees and employers affected by COVID-19.

One section of the FFCRA is the Emergency Paid Sick Leave Act (“EPSLA” or the “Act”), which requires certain employers provide paid leave to employees if such leave is related to COVID-19. Notably, employers are required to notify employees of this provision by posting a notice on its premises for employees to review.

“Covered Employer”

Under the EPSLA, a “covered employer” means any person engaged in commerce or in any industry or activity affecting commerce and, if a private entity, employs less than five hundred (500) employees, or if a public agency, employs one (1) or more employees. “Commerce” and “industry or activity affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce.

Qualifying Leave under the Emergency Paid Sick Leave Act

Generally, the EPSLA provides paid sick leave to employees when the employer has less than five hundred (500) employees. Under the Act, an employer shall provide paid sick leave if an employee requests leave for one of the following reasons: (i) the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (ii) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (iii) the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (iv) the employee is caring for an individual who is subject to an order as described in item (i) or has been advised as described in item (ii); (v) the employee is caring for the employee’s child if the school or place of care has been closed, or the child care provider of such child is unavailable due to COVID-19 precautions; or (vi) 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.

Employer Obligations

If a leave pursuant to one of the reasons set forth above is requested, an employer must provide a full-time employee eighty (80) hours of paid sick leave and must provide a part-time employee a number of hours of leave equal to the average hours the part-time employee worked over two (2) weeks.

The employer must compensate a full-time employee at a rate not less than the greater of (i) the employee’s regular rate under the Fair Labor Standards Act (“FLSA”), (ii) the minimum wage rate under the FLSA, or (iii) the minimum wage in effect for the employee in the state or locality. For part-time employees with varying hours, the employer must provide a number of hours equal to the average hours scheduled per day over six (6) months, ending on the date the employee takes paid sick time, including any hours the employee took leave of any type. However, if the part-time employee did not work over that period, then the number of hours provided will be based upon the reasonable expectation of the employee at the time of hire regarding the average hours per day they would normally work. The employee’s total daily and aggregate compensation is subject to certain caps, depending on the reason such sick leave is being taken.

Notice to Employees

In addition to the foregoing obligations, which mandate that a covered employer provide paid sick leave to employees, the employer cannot hide this obligation from its employees. The EPSLA specifically states that employers must post and keep posted, in conspicuous places on the premises, where notices to employees are customarily posted, a notice regarding employees’ rights. This notice does not have to be posted in multiple languages and only applies to current employees. A copy of the required poster can be found and downloaded free of charge on the United States Department of Labor website.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us online or by calling us at (205) 319-9724.

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