New Laws to Address COVID-19: PART IV of IV
Emergency Paid Sick Leave Under the
Families First Coronavirus Response Act (FFCRA)
adopted by Congress on March 18, 2020.
By Beth Sufian, JD
Nothing in this article is meant to be legal advice but is only meant as information.
The other significant development from the Families First Coronavirus Response Act (“FFCRA”) is the creation of the Emergency Paid Sick Leave (“EPSL”) benefit. EPSL provides up to two weeks of paid leave to employees for qualifying reasons.
A. Employer Obligated to Provide Emergency Paid Sick Leave.
Most public employers and private employers with fewer than 500 employees are required to provide EPSL to employees who request it for a qualifying reason. EPSL is available to an employee regardless of length of their employment.
B. Qualifying Reasons for Emergency Paid Sick Leave.
All employees of covered employers are eligible to receive EPSL for six specific qualifying reasons:
1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine as related to COVID-19;
3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. The employee is caring for an individual subject to a quarantine or isolation order or the employee has been advised by a health care provider to self-quarantine;
5. The employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
A school or place of care is “closed” for purposes of EPSLA and PHEL even if instruction is being offered or provided online.
C. Documentation Required.
The Department of Labor has issued regulations describing the type of documentation and information an employee must present when requesting EPSL. Before receiving EPSL the employee is required to inform their employer of:
1. The type of leave requested;
2. The beginning and ending dates of the requested leave;
3. The qualifying reason for the leave; and
4. An oral or written statement that the employee is unable to work because of the qualified reason for leave.
If the employee is taking EPSL to care for a child, the employee must also provide the employer with:
1. The name of the child being cared for;
2. The name of the school, place of care, or childcare provider that has closed or become unavailable; and
3. A representation that no other suitable person will be caring for the child during the employee’s leave period.
An employee may need to explain why a teenager is in need of care. If the employee is taking EPSL because of an order of quarantine or isolation, the employee must provide the employer with name of the government entity that issued the order of quarantine or isolation order or name of the healthcare provider who recommended the quarantine or isolation.
Employers may ask employees to provide other information needed for the employer to request tax credits for the paid leave. The U.S. Department of Labor says that if an employee does not supply the employer with sufficient documentation, the employer is not required to provide EPSL.
D. Using Other Forms of Paid Leave with EPSL.
Employees may first use EPSL leave before using any other types of leave, such as PHEL, FMLA, or other paid leave under an employer policy that existed prior to April 1, 2020. Employers cannot require, coerce, or unduly influence employees to use their existing leave entitlements or unpaid leave prior to taking EPSL.
Keep in mind that privileges granted by employer policies (including vacation leave, sick leave, and other paid leave policies) are not permanent and may change whenever the employer decides to make changes.
E. Intermittent Use of EPSL.
Employees may take EPSL (and PHEL) leave intermittently only if the employer agrees to intermittent use.
F. EPSL May Preclude Some Other Benefits.
Generally, a worker cannot receive EPSL and another benefit intended to replace income for the same time period. For example, during the period of EPSL, the employee would not be able to claim workers’ compensation benefits, temporary disability benefits, or unemployment compensation benefits for that same period.
G. Amount of Emergency Sick Leave.
EPSL pays full-time workers for up to 80 hours over two weeks. Part-time workers receive pay that is equal to the worker’s customary working hours. The rate of pay depends on the qualifying reason. If the employee requests EPSL for his or her own quarantine, isolation, diagnosis, or treatment, then the worker receives 100% of the customary pay rate. If the employee requests EPSL to care for a family member, then the worker receives 2/3 of the customary pay rate.
Beth Sufian has practiced law for 30 years. Beth is 54 and has cystic fibrosis. Beth is the current President of CF Roundtable. You may contact her with your legal questions about CF-related issues at CFLegal@sufianpassamano.com.