Who says government always moves slowly? In record time, not only has the federal government adopted three new complex pieces of legislation addressing coronavirus emergency measures but now, the Department of Labor has issued its first guidance on the subject. Below are some frequently asked questions about the Emergency Paid Sick Leave Act. Tomorrow we will cover the temporary expanded Family Medical Leave Act.
What are the actual effective dates of the Emergency Paid Sick Leave Act (EPSLA)?
Answer: Although uniformly thought to be April 2, 2020, through December 31, 2020, the Department of Labor has set the effective date for April 1, 2020.
I am a small government employer with five employees who work for me – does the EPSLA apply to my employees?
Answer: The Act specifically states that all governmental employers and all private employers with fewer than 500 employees are covered by the Act, but see #10 below.
If we already gave our employees two weeks off with pay, do we have to give them an additional two weeks off with pay after April 1st?
Answer: Yes, the EPSLA benefits are available to all employees after April 1st, of employers with fewer than 500 employees and all government employers.
How do I calculate the sick leave amount for my part-time employees who work variable hours every week?
Answer: Employers must pay their part-time employees one of three ways:
- Average of weekly hours over the last six months OR
- If a variable hour employee has not worked six months then use the number of hours that the employer and employee agreed to work in a week upon hire OR
- use the average of hours worked over the time that they have worked in the less-than-six-month period.
During the shelter in place order, are all of our employees who are not working eligible for the benefits under the EPSLA?
Answer: Yes, it is likely that all employees who are unable to work or telework due to the Governor’s stay at home order are eligible for benefits under the EPSLA.
How much pay are employees entitled to under EPSLA?
Answer: Qualified reasons for emergency paid sick time leave: An employee is unable to work or telework due to a need for leave because the employee is:
- subject to quarantine or isolation order;
- has been advised by a health care provider to self-quarantine due to coronavirus concerns; or
- is experiencing symptoms of coronavirus and seeking a medical diagnosis.
- Pay: Employee’s regular pay, up to $511/day and $5,110 over the benefit period.
Other qualified reasons for paid sick time leave: An employee is unable to work or telework due to a need for leave because the employee is:
- caring for an individual who is subject to quarantine or isolation order or has been advised by a health care provider to self-quarantine due to coronavirus concerns;
- caring for their child if their school or daycare has been closed, or the child care provider is unavailable, due to coronavirus precautions; or
- is experiencing “any other substantially similar condition specified by” the Secretary of Health and Human Services in consultation with the Secretaries of the Treasury and Labor.
- Pay: Two-thirds of the employee’s regular pay, up to $200/day and $2,000 over the benefit period.
Can employees make a claim for benefits under EPSLA if they are laid off prior to April 1, 2020?
Answer: The DOL guidance confirms that the FFCRA is not retroactive, therefore no entitlement to benefits exists prior to April 1, 2020.
Can employees successfully argue that an employer has unlawfully retaliated under the FFCRA to avoid making paid sick leave payments if the employees were laid off prior to April 1st?
Answer: This is an interesting issue which must ultimately be analyzed on a case by case basis depending on the facts surrounding the layoffs. It is important that if employees determine that layoffs are appropriate that the reasons for the layoff are a sustained or anticipated lack of work beyond any government-issued stay at home order. Employers should well document the reasons for the layoff and be sure to follow any layoff procedures in their collective bargaining agreements.
Do any exceptions to the Act exist for employers with fewer than 500 employees?
Answer: The FFCRA provides that the Secretary of Labor may issue regulations that exempt from coverage under the Act for health care providers or emergency responders as well as businesses with fewer than 50 employees when the imposition of the EPSLA requirements would jeopardize the viability of the business as an ongoing concern. The Act does not define the terms health care providers or emergency providers. Governor Pritzker’s order defines emergency responders as follows: emergency management personnel, dispatchers, court personnel, law enforcement and corrections, hazardous materials responders, child welfare personnel, military, and other government employees working for or to support Essential Businesses and Operations. We will keep you informed on whether the Secretary of Labor issues relevant regulations.
Do employers have to post notice of the requirements of this Act like they do for other wage and hour laws?
Answer: Yes, employers are required to post notice of employee’s rights under the EPSLA and the Secretary of Labor is required to create a sample poster within seven days after enactment of the law.