THE EMERGENCY PAID SICK LEAVE ACT
In addition to the Emergency Family and Medical Sick Leave Expansion Act, the Emergency Paid Sick Leave Act provides for paid sick leave for qualified employees.
Q&A
WHEN ARE THE REQUIREMENTS OF THIS ACT EFFECTIVE?
The requirements of this Act shall take effect on April 1, 2020 (15 days from enactment of this act). The requirements of this act expire on December 31, 2020.
WHICH EMPLOYEES ARE COVERED UNDER THE EMERGENCY PAID SICK LEAVE ACT?
The Act covers employees who are unable to work (or telework) due to a need for leave because:
The employee is subject to a Federal, State, or local quarantine or isolation order related to Covid–19.
The employee has been advised by a health care provider 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 order related to Covid–19, or
has been advised by a health care provider to self-quarantine due to concerns related to Covid–19.
The employee is caring for a son or daughter of such employee if the school or place of care of the child has been closed or the childcare provider is unavailable.
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.
WHICH EMPLOYEES ARE NOT COVERED UNDER THE ACT?
Employees who refuse to work because they are afraid of becoming infected;
Employees who are out of work but who are not exposed to the virus, are not sick or are not caring for a family member;
Employees who lose their job before April 2, 2020
WHO ARE THE COVERED EMPLOYERS UNDER THIS ACT?
Employers with less than 500 or more than 1 employee(s) are covered under the Act.
CAN EMPLOYERS EXCLUDE CERTAIN HEALTH CARE EMPLOYEES FROM TAKING EMERGENCY PAID SICK LEAVE?
Yes. Employers can exclude health care providers and emergency responders from emergency paid sick leave.
A health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
An emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
HOW MANY HOURS OF SICK LEAVE IS PROVIDED UNDER THE EMERGENCY PAID SICK LEAVE ACT?
Employees are entitled to an amount of paid sick leave as follows:
For full time employees – 80 hours
For part time employees, a number of hours equal to the number of hours that such employee works, on average, over a two-week period.
CAN EMPLOYEES CARRY OVER PAID SICK TIME UNDER EMERGENCY PAID SICK LEAVE ACT FROM ONE YEAR TO THE NEXT?
No.
CAN EMPLOYERS REQUIRE EMPLOYEES TO SEARCH FOR OR FIND A REPLACEMENT FOR THEIR SHIFT WHILE TAKING A LEAVE?
No.
DOES PAID SICK LEAVE ACCRUE UNDER THE EMERGENCY PAID SICK LEAVE ACT?
No. The entire paid sick leave is immediately available to the employees regardless of their length of employment.
CAN EMPLOYEES FIRST USE THE SICK LEAVE UNDER THE EMERGENCY PAID SICK LEAVE ACT BEFORE THEY USE THEIR ACCRUED SICK LEAVE?
Yes. Employees can elect to first use the paid sick leave under the emergency paid sick leave act before using other available leave.
An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under the emergency paid sick leave act.
DO EMPLOYERS HAVE TO PROVIDE NOTICE (POSTER) OF THIS ACT TO THEIR EMPLOYEES?
Yes. Employers must post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice about the requirements of this act. The Secretary of Labor must make publicly available a sample notice by March 25, 2020.
HOW IS EMERGENCY PAID SICK LEAVE CALCULATED?
Employees are entitled to a maximum of $511 per day and $5,110 in the aggregate for:
taking emergency sick leave because of a quarantine or isolation order,
having been advised by a health care provider to self-quarantine, or
experiencing symptoms of Covid-19 and seeking medical diagnosis.
Employees are entitled to paid sick leave at two-thirds of their pay for a maximum of $200 per day and $2,000 in the aggregate for:
taking emergency sick leave to care for another individual or child, or
because they are experiencing another substantially similar illness (as specified by HHS).
The Secretary of Labor is tasked to issue guidelines for calculating paid sick leave within 15 days of the bill’s enactment (April 2, 2020).
HOW ARE EMPLOYERS COMPENSATED FOR THE COSTS OF PAID LEAVE UNDER THE ACT?
The Family First Coronavirus Response Act, under Division G – Tax Credits For Paid Sick And Paid Family And Medical Leave provides for a 100% tax credit for payment of qualified sick leave wages paid by the employers. The tax credit can be claimed each calendar quarter. If tax credit does not completely cover the cost of paid leave, employers may file for a refund for the remaining amounts.
In determining the total amount of an employer’s qualified sick leave wages paid for a calendar quarter, the total number of days that the employer can take into account with respect to a particular employee for that quarter may not exceed 10 days minus the number of days taken into account for that employee for all previous quarters.
About the Author: Reza Ghafoorian, MD, JD is the founder and Principal attorney at G2Z Law Group, PLLC, a health care law firm established in 2012. Dr. Ghafoorian focuses his practice in the fields of healthcare law and patent law, representing healthcare entities and professionals.
