Introduction to the Emergency Paid Sick Leave Act
On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (the “FFCRA”), which takes effect on 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. Specifically for employees, the FFCRA introduced the Emergency Paid Sick Leave Act (the “Emergency Pay Act”), which guarantees employees paid sick leave when dealing with health issues related to COVID-19.
What conditions guarantee paid sick leave?
An employer must provide paid sick time to its employees if they are unable to work—or telework—due to a need for leave because one of the following reasons: (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 COVID-19 symptoms and seeking medical diagnosis; (4) the employee is caring for an individual who is subject to an order as described in parts (1) or (2); (5) the employee is caring for a child if the school or place of care has been closed, or the child care provider is unable to work; or (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Labor and Human Services.
Are there any limits to paid sick leave pursuant to the Emergency Pay Act?
Full-time employees can take up to 80 hours of paid sick leave, while part-time employees can take up to the number of hours equal to what that employee works, on average, over a two-week period. Unused paid time off does not carry over to the following year. Additionally, the Secretary of Labor, through regulations, as well as employers, may elect to exclude health care workers and emergency responders from taking paid sick leave.
Importantly, paid sick leave is in addition to pre-existing paid time offered by the employer and an employer cannot change its policy to avoid this provision. Furthermore, the employee does not have to exhaust other means of leave first; paid sick leave, pursuant to this Act, is available immediately, there is no requisite duration of employment that must be met first.
How much compensation should employees expect to receive for sick leave?
For reasons (1) through (3) listed above, an employee is entitled to receive his or her required compensation for the number of hours the employee would have otherwise been scheduled to work. For reasons (4) through (6), an employee is entitled to receive two-thirds (2/3) of his or her required compensation. Additionally, there are monetary caps. If an employee is dealing with his or her own health needs related to COVID-19, including ordered or advised quarantine or isolation, or experiencing symptoms and seeking medical diagnosis, then the employee cannot recover more than $511.00 per day or $5,110.00 in the aggregate. If an employee is caring for an individual subject to ordered or advised quarantine or isolation, caring for a child whose school or place of care is closed, or otherwise meets the “catch-all” provision laid out above, then the employee is entitled to no more than $200.00 a day or $2,000.00 in the aggregate.
What if an employer does not pay an employee for sick leave?
If an employee takes sick leave for one of the above-mentioned reasons and his or her employer does not pay him or her for that sick leave, then the employer will be considered to have failed to pay minimum wages, in violation of the Fair Labor Standards Act (“FLSA”), and the employee can recover the damages.
What if an employer terminates an employee for taking sick leave?
The Emergency Paid Sick Leave Act makes it unlawful for an employer to discharge, discipline, or in any other manner discriminate against an employee who takes protected leave, and has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified in any such proceeding. If an employer violates this provision, the employer will be considered to be in violation of the FLSA and will be subject to the penalties set forth therein, including the employee’s right to seek and recover damages.
The Department of Labor (“DOL”) posted a Questions and Answers resource regarding the FFCRA on their website. The Questions and Answers provide a useful tool for understanding the different provisions of the FFCRA, including the Emergency Paid Sick Leave Act. For example, the Department of Labor answered questions addressing whether employees can use their employer’s preexisting leave plans concurrently with FFCRA paid sick leave for the same hours. The DOL explained that employees cannot take preexisting leave and emergency sick leave concurrently, unless the employer permits its employees to supplement the amount received under emergency paid sick leave, up to normal earnings, with preexisting leave.
If you feel your rights under the Emergency Paid Sick Leave Act have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you