Common Sense in Uncommon Times: How Employers can Manage the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act

| March 23, 2020
Emergency Paid Sick Leave Act 
Emergency Family and Medical Leave Act
By: Scott Hudson

As the world struggles to deal with the COVID-19 Pandemic, U.S. employers are faced with complying with two new temporary laws:

  1. Emergency Paid Sick Leave Act (EPSLA)
  2. Emergency Family and Medical Leave Expansion Act (EFMLEA)

The purpose of this correspondence is to provide a brief summary written in plain English. While we await guidance from the Department of Labor, here’s an update based on information available at this time:

  • Effective Date and Covered Employers

Both the EPSLA and EFMLEA are effective on April 2, 2020 and expire on December 31, 2020.  Both Acts apply to employers with less than 500 employees. Employers with fewer than 50 employees may apply for an exemption from the medical leave requirements of the EFMLEA, but not the paid sick leave requirements of the EPSLA.

  • Emergency Paid Sick Leave Act (EPSLA)

Without regard to their length of service, all employees are eligible for 80 hours of employer paid sick leave if:

  • the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
  • the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  • the employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine.
  • the employee is caring for a son or daughter because the child’s school or place of care has been closed or the child’s childcare is unavailable due to COVID-19 precautions.
  • the employee is experiencing any other substantially similar condition specified by the Secretary of the HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.

For categories 1 through 3, the employer is required to pay the employee’s regular rate and for categories 4 through 6, the employer is required to pay 2/3rds of the employee’s regular rate (at least the minimum wage).

  • Emergency Family and Medical Leave Expansion Act (EFMLEA)

Employees who have been employed for at least 30 days are eligible for up to 12-weeks of leave in order to care for their child because of school or childcare provider closings.  Employers are not required to pay employees for the first 10 days (though many will be covered by the 80-hour requirement of the EPSLA noted above.) After the first 10 days, employers are required to compensate employees at 2/3rds their regular rate (at least minimum wage) for the remaining duration of leave.

While there are some exceptions for employers with fewer than 25 employees, workers will be eligible for reinstatement under the same provisions outlined in the FMLA. 

  • Tax Credits

Under both the EPSLA and the EFMLEA, employers will be able to file for limited refundable employment tax credit equal to the amount paid to employees under the provisions.

  • Common Sense Recommendations

Expect to be inundated with information on these new provisions. In my conversations with clients, I am quickly realizing there isn’t a “one size fits all” solution and I strongly recommend that employers consult with their attorney regarding the specifics of your workforce. There are too many variables and intersections of laws to rely on the internet or email blasts for guidance. As an example, the prospect of an employee being able to work remotely could impact whether an employer is required to provide paid sick leave or family leave. This will tend to require an employee-by-employee and employer-by-employer determination. 

Our firm provides tailored advice and recommendations to include:

  • Initial evaluation to determine coverage
  • Providing a customized summary of the employer’s obligations
  • Reviewing and revising current policies as necessary
  • Developing new policies to comply with the provisions
  • Providing the appropriate notices to be displayed in the workplace
  • Drafting employee notices, letters and other communications
  • Reviewing healthcare provider documents submitted by employees
  • Assistance by telephone or email to work through specific situations.

If you are interested in receiving information about these services, please email me at shudson@zks.local or call me directly at 407-563-4333. We look forward to being of service during these challenging times.

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