20 Employer Q&A: COVID-19 Sick Leave Requirements

Written by Joanna Morrow

Joanna Morrow, Principal and Founder of Employer Benefits & Advice, is an employer consultant and advocate who has worked in the employee benefits industry for over two decades. She works diligently to help employers overcome obstacles in their business by sharing her expertise in Human Resources, Benefits & Compensation, Process Mapping, Risk Management and ERISA/DOL/IRS compliance. She is a licensed life and health insurance professional in the State of Arizona and is an active member of the National Association of Health Underwriters (NAHU).

20 Employer Q&A: COVID-19 Sick Leave Requirements

On March 20th, 2020, President Trump signed into law, ”The Families First Coronavirus Response Act” (the law).

1. When does the new law take effect?

It becomes effective in 15 days, (April 2, 2020).

2. What are the key employment-related aspects of the law?

The law provides two leaves:

A. Paid Sick Leave
B. Paid Public Health Emergency Leave Under the Family and Medical Leave Act (FMLA).

3. Does the law apply to all employers?

No. The law only applies to employers with fewer than 500 employees. Part-time employees are included in this count to assess coverage. Further, the below provisions can also be affected by specific state and local laws.

Paid Sick Leave

4. What are the rules under the Paid Sick Leave component of the law?

Employers with fewer than 500 employees will be required to provide full-time employees with 2 weeks (80 hours) of paid sick leave for the following reasons:

  • Self-Isolation: To self-isolate because of a diagnosis of COVID-19, or to comply with a recommendation or order to quarantine due to exposure or exhibition of symptoms;
  • Medical Diagnosis: To obtain a medical diagnosis or care if the employee is experiencing symptoms of the coronavirus;
  • Family Care: To care for a family member who is self-isolating due to a diagnosis of coronavirus, experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care, or quarantining due to exposure or exhibition of symptoms; or
  • School Closure: To care for a child whose school has closed, or childcare provider is unavailable, due to the coronavirus.

5. At what rate of pay am I required to pay this new sick leave?

Employers must compensate employees for any paid sick time they take at their regular rates of pay.

6. What rate do I use if my employee is using sick leave to care for an affected family member or child?

If the leave is being used to care for a family member or child, the employee is only entitled to two-thirds of his or her regular rate of pay.

7. How soon can employees access their sick leave?

The sick leave is available for immediate use by employees, regardless of length of employment.

8. Are part-time employees entitled to sick leave?

Additionally, part-time employees are entitled to the number of hours of paid sick time equal to the number of hours they work, on average, over a 2-week period.

9. What if we already provide employees with paid sick leave?

Employers who already provide paid leave to employees on the day before the law is enacted must provide this paid leave in addition to any paid leave already provided.

10. Can I change my paid leave policy?

No. Employers may not change their current paid leave policies on or after the date of enactment to avoid compliance.

11. Can I require employees to utilize other paid leave before using the paid leave provided by this bill?

No. This part of the law is set to expire on December 31, 2020.

Paid Public Health Emergency Leave Under the Family and Medical Leave Act

12. Which companies are required to comply?

Employees of employers with fewer than 500 employees can be provided with the right to take up to 12 weeks of public health emergency leave under the Family and Medical Leave Act (“FMLA”).

13. At what rate of pay am I required to pay Public Health Emergency Leave?

Ten (10) of these twelve (12) weeks are be paid at a rate of no less than two-thirds of the employee’s usual rate of pay.

FMLA leave for all other purposes remains unpaid.

The first two weeks will be paid by the sick leave as outlined in “A” above.

14. Which employees are eligible for the Public Health Emergency Leave?

To be eligible for this paid leave, employees must have been on the employer’s payroll for 30 days and may use emergency FMLA leave for the following reasons:

To care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to the coronavirus.

15. Can any portion of the Public Health Emergency Leave be unpaid?

Yes. The first two (2) weeks of leave may be unpaid.

16. Can I require the employee to use Paid Time Off (PTO) or Sick Leave in place of this leave?

No. The employee may choose to substitute accrued paid time off or other medical or sick leave during this period, but an employer cannot require an employee to do so.

17. At what rate must I pay the Public Health Emergency Leave under FMLA?

After the first two weeks of unpaid leave, employers must continue paid FMLA leave at a rate of no less than two-thirds of the employee’s usual rate of pay.

18. Do I have to hold the employee’s job while he/she is out on leave?

As with traditional FMLA leave, this leave is job-protected and an employer must return the employee to the same or equivalent position upon their return to work.

19. Are there any exceptions?

This new law outlines an exception for employers with less than 25
employees if the employee’s job no longer exists due to the coronavirus pandemic.

This exception requires employers to make reasonable efforts to restore the employee to an equivalent position over a one (1) year period.

The Secretary of Labor has the authority to issue regulations exempting:

(1) certain health care providers and emergency responders from taking leave under the bill; and

(2) small business with fewer than 50 employees from the requirements of the bill if it would jeopardize the viability of the business.

This amendment to the FMLA would expire on December 31, 2020.

20. Will a Model Notice be issued by the Department of Labor?

Within seven days (7) from enactment, the Secretary of Labor will provide a model notice to be posted in areas that are readily accessible to employees (e.g., kitchens and breakrooms) regarding the law. It is likely a direct notice might also be required in the form of an email or letter, however that remains undetermined as of right now.

For a copy of the law, please click on the link below:

https://www.congress.gov/bill/116th-congress/house-bill/6201/text/eh

NEXT… what participating employers can expect in the way of tax credits and grants in order to meet the financial obligations associated with these leaves.