News & Legal Insights

EPSLA

Requires employers to provide full-time employees with 80 hours of paid sick time, and part-time employees with a number of paid sick time hours equal to the average number of hours they worked over a two-week period if the employee is unable to work or telework because:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (Reason 1);
2. The employee has been advised by a health care provider to self-quarantine because of COVID-19 (Reason 2);
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (Reason 3);
4. The employee is caring for an individual subject to a quarantine or isolation order by a governmental entity, or who has been advised by a healthcare provider to quarantine (Reason 4);
5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions (Reason 5); or
6. The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Please note, that, in order to qualify as unable to work, an employer must have work for their employee to do.  If an employer closes due to a lack of business caused by COVID-19, an employee is not entitled to seek leave—the employer has no work for their employee.

EPSLA

Employers that employ between 1 and 499 employees.

EPSLA

All employees, regardless of how long the employee in question has worked for the employer, except employers may exclude healthcare or emergency responders from taking leave.

EPSLA

Employers with less than 50 employees can be exempt from providing leave only when leave is requested to provide childcare for a son or daughter/child (Reason 5), and only if granting such leave would jeopardize the viability of their business as a going concern.

This occurs when:

(1) Such leave would cause the employer’s expenses and financial obligations to exceed available revenue, and cause the small employer to cease operating at a minimal capacity;
(2) The absence of the employee or employees requesting leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
(3) The employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor services are needed to operate at a minimal capacity.

The exemption is not automatic. It is extremely important to document all facts and circumstances related to the denial of a request for leave. Employers must keep any requests and the reasons for denial for four years.

EPSLA

Limited to $511 per day ($5,110 in the aggregate) when leave is taken for reasons 1 through 3, and 2/3 the regular rate of pay up to $200 per day ($2,000 in the aggregate) when leave is taken for reasons 4 through 6.

This leave time automatically expires December 31, 2020, and cannot be carried over to the following year and an employer does not have to pay a separated employee for unused leave.

Employers may not require employees to use their existing paid leave before they may use the EPSLA leave.

Employers cannot require employees to find a replacement to cover a shift when taking leave.

Employers may terminate an employee’s paid sick time beginning with the employee’s next-scheduled work shift after the employee’s emergency paid sick time ceases.

EPSLA

Employees may use EPSLA payments to fill the 10-day unpaid leave period in the EFMLEA to ensure that workers taking EFMLEA leave receive a full 12 weeks’ pay.

EPSLA

The FFCRA provides employers with a refundable tax credit against the employer’s share of Social Security and Medicare Tax (FICA Tax) or excise tax for employers subject to the Railroad Retirement Tax Act (RRTA Tax), as applicable. If the FICA Tax or RRTA Tax owed is insufficient to cover total qualified wages, then the excess qualified wages shall be refunded to the employer. Employers may elect not to have the above provisions apply. The Act provides similar credits against self-employment tax for self-employed individuals.

Please discuss your specific tax questions and accounting practices under the FFCRA with your tax professional.

Information on the tax credits is also available here.

EPSLA

Employers with 25 or more employees: An employee is entitled to be restored to the same or an equivalent position upon return, unless the employee would have been impacted by employment actions, like layoffs, that would have occurred whether or not leave was taken. The burden will be on the employer to demonstrate this.

Employers with fewer than 25 employees: The employer does not have to restore employment and is not subject to the above if the following conditions are met:

(1) The employee took leave to care for their child/son or daughter whose school or childcare was unavailable;
(2) The position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by public health emergency during the period of the employee’s leave;
(3) The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
(4) If the reasonable efforts fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position comes available. This period is one year.

EPSLA

Employers need to post a notice in a conspicuous place where employee notices are usually posted that inform employees of their rights.

The model notice created by the Department of Labor is located here.

Employers may also send the notice to employees via email but are not required to. We recommend doing that, however, for teleworking employees to avoid any question during a potential enforcement action that an employer stood in the way with the employees’ rights.

EPSLA

An employer can require employees to provide notice and sufficient information for an employer to determine if leave is covered by the FFCRA as soon as practicable after the first workday or portion of a workday for which an employee receives paid sick leave.

Requests for documentation cannot go beyond what the FFCRA allows. All employees are required to provide a signed statement containing the following:

(1) The employee’s name;
(2) The date(s) for which leave is requested;
(3) The COVID-19 qualifying reason for leave; and
(4) A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

Employees also must provide additional documentation, depending on the COVID-19 qualifying reason:

If the request is for Reason 1, an employee must provide the name of the entity that issued the quarantine or isolation order to which the employee is subject.

If the request is for Reason 2, an employee must provide the name of the healthcare provider that advised self-quarantine.

If the request is for Reason 4, an employee must provide either the government entity that issued the quarantine or isolation or to which the individual is subject or the name of the healthcare provider who advised the individual to self-quarantine, depending on the precise reason for quarantine.

If the request is for Reason 5, an employer must provide:

(1) The name and age of the child being cared for;
(2) The name of the school, place of care, or childcare provider that closed or became unavailable due to COVID-19 reasons;
(3) A statement representing that no other suitable person is available to care for the child during the period of requested leave. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave; and
(4) If the child in question is older than  14 years of age, an explanation of  “special circumstances” requiring the employee to care for that child during daylight hours.

If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.

EPSLA

Employers that violate the requirements of the EPSLA or who discharge, discipline, or discriminate against employees that seek sick leave, take sick leave, or initiate a proceeding related to the same, will be held liable for damages equal to the federal minimum wage for each hour denied, an additional equal amount as liquidated damages, and an amount for costs and reasonable attorneys’ fees. If there are repeated or willful violations, employers can also be subject to a civil fine for each violation in addition to the forgoing.

EPSLA

An employee can initiate enforcement in federal or state courts with competent jurisdiction.

Complaints for violations of the EPSLA and/or the EFMLEA can be filed with the Secretary of the Department of Labor, who has the power to investigate and bring an action against noncompliant employers.