COVID-19 and Sick Leave

In response to the COVID-19 outbreak, Congress passed the Families First Coronavirus Response Act and the President signed it into law on March 18, 2020.

As part of the economic stimulus plan, the Act contains a number of provisions that may affect companies’ sick leave.  The Act applies to any employer with less than 500 employees.

Paid Family Medical Leave

• The Act applies to any employee who has worked for the employer for at least 30 days.
• The Act provides 12 weeks of job-protected paid Family and Medical Leave Act (FMLA) leave.  The first 14 days may be unpaid. The remaining time must be at two-thirds the employee’s regular rate. If employees work part-time or an irregular schedule, the employee is entitled to be paid based on the average number of hours the employee worked for the six months prior to taking the emergency leave.
• Employees may use their personal or sick leave during the first 14 days, but employers cannot require employees to do so.
• Employees may take the leave to 1) comply with a recommendation or order to quarantine and they are unable to perform their job functions while doing so; 2) care for an at-risk family member who is quarantined due to exposure to, or symptoms of, coronavirus; or 3) care for their child if the child’s school or place of care has been closed, or their childcare provider is not available due to a public emergency.
• The Secretary of Labor may issue regulations to exempt some small businesses (fewer than 50 employees) and to exclude healthcare providers and emergency responders from the list of those employees eligible for leave.
• The Act will go into effect within 15 days of enactment and remain in place until December 31, 2020.

Paid Sick Leave

• Employers must provide employees 2 weeks (80 hours) of paid sick leave to 1) self-isolate because they have been diagnosed with coronavirus; 2) obtain a medical diagnosis or care if the employee is experiencing symptoms of coronavirus; 3) comply with a recommendation or order because of the employee’s exposure to or symptoms of coronavirus; 4) care for a family member who is self-isolating because they have been diagnosed with coronavirus or are seeking medical care because of symptoms; or 5) care for a child if their school or place of care is closed, or the care provider is unavailable, due to the virus.
• These two weeks are in addition to any paid sick leave currently provided by the employer.
• Rates shall be paid at the employee’s normal rate of pay. Part-time or irregular schedule employees should be paid based on the average number of hours the employee worked for the six months prior to taking the leave.
• If the employee requests, the employer must pay this emergency sick leave in place of the initial 14 days of unpaid leave required by the Paid Family Medical Leave above.
• Employers must post a notice informing employees of their rights to leave.
• This Act will go into effect within 15 days of enactment and remain in place until December 31, 2020.

Tax Credits for Employers Affected by the Emergency Leave Provisions

The Act also provides a series of refundable tax credits for employers that are required to provide both the Paid Family Medical and Paid Sick Leaves described above. The credits are allowed against the employer portion of Social Security taxes (Internal Revenue Code Section 3111(a)).  Because it is treated as a credit, employers will be reimbursed if their costs for employee leaves exceed the taxes they would otherwise owe.

The credit for wages paid out under the Emergency Family and Medical Leave Expansion Act is set at 100% for amounts paid per quarter, but is subject to a cap of $200 per day for each individual, up to $10,000 total for the business per calendar quarter.

The credit also includes wages paid out in compliance with the Emergency Paid Sick Leave Act.  This credit amounts to 100% of the qualified sick leave wages paid by employers for each calendar quarter with a cap.  The cap covers $511 per day, but only $200 if the leave is for the employee to care for a family member or child.  The cap includes 10 days per employee in each calendar quarter.

We continue to monitor events as they arise.  For more information, please contact any member of our Employment & Labor Litigation practice group.