Employees unable to work for certain specified reasons will be entitled to up to two weeks of paid sick leave.  For clarity, in this document we will refer to this as “Emergency Paid Sick Leave.”

The Emergency Paid Sick Leave is in addition to any paid time off offered by an employer (e.g., sick time, PTO, etc.) and must be applied before the employer’s usual PTO.

Emergency Paid Sick Leave is required for absences relating to:

• Employee is subject to Federal, state or local quarantine or isolation order related to COVID-19;
• Employee is advised by health care provider to self-quarantine due to concerns related to COVID-19;
• Employee has symptoms of COVID-19 and seeking medical diagnosis;
• Employee is caring for individual who is subject to quarantine or isolation order or is has been advised to self-quarantine from a health care provider;
• Employee is caring for son or daughter of such employee if the school or place of care of the son or daughter has been closed or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
• Employee is experiencing any substantially similar condition as specified by HHS/DOL/Treasury.

The pay rate required for Emergency Paid Sick Leave and applicable caps is determined by the reason for the employee’s absence.

• For absences relating to the employee’s own situation (i.e., the first three bullet points listed above), the employee is entitled to receive full pay with a cap of $511/day and $5,110 total.
• For absences relating to other covered situations (i.e., the last three bullet points listed above), the employee is entitled to receive no less than 2/3 pay with a cap of $200/day and $2,000 total.

Full-time employees are eligible for 80 hours of Emergency Paid Sick Leave; part-time employees are eligible for the number of hours that they typically work in a two-week period.

Employees can use Emergency Paid Sick Leave before using any employer-provided PTO and employers cannot require employees to use PTO first.

Employers would not be permitted to change their usual PTO benefits that are in effect as of the date of enactment of the new law (i.e., March 18, 2020).

Employers would not be permitted to require employees to search for or find a replacement as a condition of providing the paid sick time.

This Emergency Paid Sick Leave would be available to employees regardless of how long they have been employed.

An employer who fails to pay Emergency Paid Sick Leave when required under the Act will be considered to have failed to pay minimum wage under the Fair Labor Standards Act.

It is unlawful to retaliate against an employee for exercising his or her rights under the Act.

This Act applies to employers with fewer than 500 employees.

For employees who work varying schedules, the number of hours of Emergency Paid Sick Leave required is calculated by taking the average number of hours worked per week in the preceding six months or, if the employee has not been there six months, the “reasonable expectation of the employee at the time of hiring of the average number of hours per day the employee would normally be scheduled to work.”

After the first workday the employee receives Emergency Paid Sick Leave, the employer may require the employee to follow reasonable call-off/notice procedures to continue receiving Emergency Paid Sick Leave.

The FFCRA provides payroll tax credits to employers who pay employees using Emergency Paid Sick Leave to offset the expense to the employer.

Employers of “an employee who is a health care provider or an emergency responder” are able to elect to exclude the employee from the provisions of the FMLA expansion act.  The DOL’s March 29 guidance clarified that “health care provider” is defined very broadly and includes “anyone employed at any…nursing facility, retirement facility, nursing home, home health provider…or any similar institution, employer or entity.”  Accordingly, an employer of any such person has the option of exempting him or her from eligibility for Emergency Paid Sick Leave.  Employers are also free to not exempt “health care providers.” If an employer chooses to make the benefits available to employees who are health care providers, the employer must have less than 500 employees to claim the tax benefit.

In addition, the Secretary of Labor would have authority to issue regulations that would exclude certain “health care providers and emergency responders” from the definition of “eligible employee” and also to exempt certain smaller employers (i.e., under 50 employees) if compliance would jeopardize the viability of the company.

Employers are required to post a notice of Employee’ Rights under FFCRA.  The Secretary of Labor has developed and provided a Notice that can be used for this purpose (see Resources, below).

All requirements under the Act expire on December 31, 2020.

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