COVID-19 Defense Team | Stay up to date on the COVID-19 pandemic

Department of Labor COVID-19 Guidance on Paid Sick Leave

10APR

Department of Labor COVID-19 Guidance on Paid Sick Leave

On April 1, 2020, the Families First Coronavirus Response Act went into effect. It provides paid sick and family leave to employees through December 31, 2020 related to COVID-19. The Act applies to private employers with fewer than 500 employees. The company (not just the location) must have fewer than 500 employees. The Department of Labor has provided Q&A Guidance, which is discussed below. Please note, however, that this guidance is not binding on the courts, meaning there may eventually be a different interpretation of these issues by judges.

What does the FMLA Expansion require?

It expands FMLA, job-protected leave to employees who have been employed for at least 30 calendar days, as opposed to the 12 months ordinarily required for FMLA leave, to care for employee’s child whose school or child care facility has been closed due to the coronavirus. The first ten days of leave can be unpaid, unless the employee chooses to use any accrued vacation leave, personal leave, or medical/sick leave. After the first ten days, the employee must be paid two-thirds of his or her regular rate of pay, with a cap of $200 per day (and $10,000 aggregate).

What does the Paid Sick Leave require?

Employers must provide 80 hours of paid sick leave to full-time employees (an amount equal to the average number of hours they work over a two-week period to part-time employees). The paid sick must be available immediately to employees. All employees, regardless of length of time with the employer, are entitled to paid sick leave.

The rate of pay for the leave is the employee’s regular rate of pay (capped at $511 per day and $5,110 in the aggregate) if leave is for the following reasons:

The employee is subject to a federal, state or local quarantine because of the coronavirus;
The employee must obtain medical care if he or she is experiencing symptoms of coronavirus;
The employee must comply with health care provider recommendations to self-quarantine due to the coronavirus;

The rate of pay for the leave is two-thirds of the employee’s regular rate of pay (capped at $200 per day and $2,000 in the aggregate) if leave is for the following reasons:

The employee must care for an individual who is subject to federal, state or local quarantine or to comply with a health care provider recommendation due to the coronavirus;
The employee must care for the employee’s child whose school or child care facility has been closed due to the coronavirus; and
Any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

The regular rate of pay includes not just their hourly rate of pay, but all remuneration paid to the employee (such as tips, overtime, etc.). It does not include the items listed as excluded from the regular rate of pay in 29 U.S.C. 207(e)) (gifts, rewards for service, PTO or vacation pay, etc.).

Department of Labor Guidance

May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason?
No, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?
No. The FFCRA imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

Is all leave under the FMLA now paid leave?
No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

When am I able to telework under the FFCRA?
You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

If my employer closed my worksite before April 1, 2020, can I still get paid sick leave or expanded family and medical leave?
No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
No. If your employer closes after the FFCRA’s effective date, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits.

If my employer is open, but furloughs me on or after April 1, 2020, can I receive paid sick leave or expanded family and medical leave?
No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.

If my employer closes my worksite on or after April 1, 2020, but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?
No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.

If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work?
No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.