Advice for Employers Regarding the New Federal Sick Leave Laws

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”). The law is in effect from April 1, 2020, until December 31, 2020, and requires that employers provide paid sick leave in certain circumstances related to the current COVID-19 pandemic.  The law also provides for employers to pay employees who must take leave relating to specific COVID-19 childcare situations.  This posting is in regard to the paid sick leave.  See our separate posting regarding the childcare leave laws.

The New Federal Paid Sick Leave Law

Employers Subject to the Law.  The law applies to all private and some public employers who have less than 500 employees.

Who Pays.  Employers pay, but they will be “reimbursed” for the paid wages by a credit against the tax employer’s pay roll taxes for each calendar quarter; the credit will be in an amount equal to 100 percent of the qualified sick leave wages paid by the employer.  “Qualified” means the employee is out for a reason specified in the law, which is generally not related to shelter-in-place orders.

Employee Qualifications.  This paid sick leave is available for immediate use, regardless of how long an employee has been employed.

Reason for Sick Leave.  An employee is entitled to this paid sick leave for any of six specified reasons, which fall generally into the following three categories.  Each of the reasons requires that the employer has work for the employee and that the employee is unable to perform the work because:

Quarantine or Isolation Order:  The employee is subject to a federal, state or local quarantine order, isolation order or similar restriction, including shelter-in-place orders in narrow circumstances.  The quarantine or isolation order must be specific to the employee; a general shelter-in-place order that limits the employer’s business is not sufficient.

Self-care:  The employee is (1) sick due to COVID-19, OR the employee is quarantined due to COVID-19 (quarantine can be imposed by government or by the employee’s medical provider), OR the employee is experiencing symptoms of COVID–19 and is seeking a medical diagnosis, and (2) is unable to work or telework for one of these reasons.

Care of Others:  Sick leave is also available if the employee is (1) caring for someone who is experiencing symptoms of COVID–19 and who is seeking a medical diagnosis OR the employee is caring for a minor child whose school or day care provider is unavailable because of COVID-19 and (2) is unable to work or telework for one of these reasons.

Examples:

  1. Local shelter-in-place order reduces business needs so much that receptionist is told to stay at home because there is not enough work for him.  Employee is NOT entitled to federal paid sick leave.
  2. Local shelter-in-place order exempts medical offices but receptionist has been told to stay at home by his doctor because he has been exposed to someone who tested positive for COVID-19.   Employee IS entitled to federal paid sick leave.
  3. Local shelter-in-place order exempts medical offices but receptionist has been told to stay at home by his doctor because he has scarlet fever. Employee is NOT entitled to federal paid sick leave.
  4. Local shelter-in-place order makes it where the employees of a specific business must work from home. Employee’s home is subject to a power outage; now the employee has work available, but cannot do it because the shelter-in-place order will not allow the employee to go someplace else to work remotely.  Employee IS entitled to federal paid sick leave.  (This example was provided by the US Department of Labor.)

Amount of Sick Leave.  Full-time employees are entitled to 80 hours of sick leave under this program.  Part-time employees receive the number of hours that they work on average in a two-week period. Leave under this federal law is in addition to other leave already provided by the employer and/or required by state or local law.

Pay Rate and Caps.  The reason for the leave determines the amount of pay the employee is entitled to receive.

Self-Care & Quarantine:  For leave because the employee is subject to a quarantine order or for self-care reasons, the employee is paid at the regular rate of pay or the minimum wage, whichever is greater.  Paid leave is capped at $511 per day and $5,110 in the aggregate for self-care or quarantine.

Care of Others:  For leave related to care of another, including childcare, the employee is paid at 2/3 of their regular rate of pay or minimum wage, whichever is greater. Paid leave is capped at $200 per day and $2,000 in the aggregate for care of another.

Other Available Leave.  It is the employee’s choice whether to use paid sick under this law before using other leave available to the employee; an employee cannot be required to use any existing sick leave or PTO for the purposes covered by this law.

Documentation.  Employees are required to provide employers with documentation stating (1) employee’s name; (2) dates for which leave is requested; (3) the qualifying reason for the leave; and (4) either an oral or written statement that the employee is unable to work because of the qualifying reason.

AND

When the qualifying reason is that the employee is subject to a quarantine or isolation order, the employee must provide the name of the government entity that issued the order.  When the qualifying reason is that the employee was advised by a health care provider to self-quarantine, the employee must provide the name of the health care provider. When the qualifying reason is that the employee is providing childcare, the employee must provide the name of the child; the name of the school, place of care or child care provider that is unavailable; and a representation that no other suitable person will be caring for the child during the period for which the employee is taking leave.

Employers may also ask employees to provide additional “material” that is needed in order for the employer to request the tax credits under the law.

Maintaining Documentation.  Employers must retain the above documentation for four years, including documentation of an employee’s oral statements.

Notice Required by Employers.  Employers are required to post notices developed by the US Department of Labor.  The notices are considered posted if the employer mails or emails the notices to employees.  The posters can be found here:  https://www.dol.gov/general/topics/posters.

No Discrimination/Retaliation.  Employers cannot retaliate against an employee who has taken or asked to take leave under the new law.

Existing Sick Leave Laws

The federal law is in addition to sick leave that is already mandated by California law or local ordinance.

Don’t Forget to Check Local Sick Leave Programs

Check your locality’s sick leave programs. For instance, the City of San Francisco has revised its sick leave ordinance in light of Covid-19 (see, https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus).  San Francisco will also provide financial assistance to businesses and nonprofits to provide additional paid sick leave time to employees, over and above their existing policies. All San Francisco businesses will be eligible.