Emergency Sick Leave FAQ

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Families First Coronavirus Response Act

The Families First Coronavirus Response Act was signed by the President on March 18, 2020 and goes into effect 15 days following the signing (April 01, 2020). This Act will provide two types of protection for employees in the months to come. One protection is to provide additional pay for an employee off work. The other protection is to provide both a protected leave of absence and additional pay for employees who are off work to care for a child due to school and/or daycare closures. Please read both sections carefully as both will apply to businesses.

Also – these laws are brand new and a bit ambiguous. We have done our best to break down the regulations in an easy-to-read FAQ format, but please contact McKague Rosasco LLP with any questions pertaining to these two new regulations.

 

Emergency Sick Leave FAQ

Which employers does this emergency sick leave apply to?

All private sector employer that have less than 500 workers (regardless of FT or PT status). This means mostly all small to medium size employers (there is no minimum).


Which employees does this Emergency Sick Leave apply to?

Any employee (regardless of PT or FT status) who cannot work or telework due to the following:

(i) an employee is subject to a coronavirus quarantine or isolation order, or an employee is caring for individual subject to a quarantine or isolation order.

a. This is all cities and counties who have required quarantine or isolation orders including San Francisco, Marin, Santa Clara, Santa Cruz, San Mateo, Contra Costa and Alameda, which includes the cities of Berkeley and Oakland, Sacramento, Yolo, and Fresno as of the publishing of this article.

(ii) an employee who has been advised by a health care provider to self-quarantine due to coronavirus concerns or an employee caring for an individual that has been advised by a health care provider to self-quarantine due to coronavirus concerns.

(iii) an employee who is experiencing symptoms of coronavirus and is seeking a medical diagnosis;

(iv) an employee caring for a child whose school or place of care is closed, or the childcare provider of the child is unavailable, due to coronavirus precautions;

(v) an employee who is experiencing any other substantially similar condition specified by HHS in consultation with the Treasury and Labor Departments.

 

How many hours of sick leave are employees entitled to under the Emergency Sick Leave?

Full-time employees are to receive 80 hours (10 days) of sick leave, and part-time workers are granted leave equivalent to their average hours worked in a two-week period. Part-time employees who are variable-hour employees but have not worked in the last two weeks should be paid the average hours over the last 6 months of work. If the employee has not worked for a 6-month period then the reasonable expectation of hours of work per week the employee expected when hired.

(i) Note: The Act references wages in daily rates. Until guidance is posted, it may be easier to comply with the Act by converting an employee’s hourly rate to a per day rate. (e.g. 6 hours at $15.00 per hour = $90 per day)

 

Is there a cap on how much the Company has to pay employees for Emergency Sick Leave?

Workers taking leave for themselves will have to be paid at least their normal wage or the applicable federal, state, or local minimum wage, whichever is greater. Sick leave pay is capped at $511 per day and $5,110 in the aggregate for leave taken for oneself. Therefore, you should be paying an employee 100% of their wages unless the employees wages exceed $511 per day.

Workers taking time off to care for family members must be paid at two-thirds of the employee’s wages, capped at $200 per day and $2,000 in the aggregate for leave taken. This includes category (iv) above, which is leave taken due to school or daycare closure.

· (E.g. if employee earns $15 per hour, and works an average of 6 hours per day the daily rate of that employee is $90. If the employee must care for their child due to school closure you must pay the employee 2/3 of their daily rate or $59.94 per day).

· PLEASE NOTE: the Secretary of labor must issue guidance for paying employees under this Act by mid-April (April 17, 2020) and wages paid under the emergency sick leave provisions will not be subject to the 6.2 percent social security payroll tax typically paid by employers on employees’ wages.

 

How long must the employee work for the employer to be eligible for Emergency Sick Leave?

The sick leave for FT or PT must be available for immediate use regardless of the employee’s tenure with the employer.

 

May I require an employee to exhaust other paid sick leave prior to using this Emergency Sick Leave?

No, if the employee is taking the emergency sick leave for a qualifying reason noted above, the employer cannot require the employee to exhaust other available sick leave first.

 

Does this Emergency Sick Leave replace California Paid Sick Leave?

No, employers are required to provide both types of sick leave to employees. Once an employee exhausts the emergency sick leave, they may be able to use other forms of paid leave.

 

Can I require a medical note for employees to use the Emergency Leave?

The Act does not state that this is permitted or restricted. At this time and with the medical crisis, it would not make sense to inundate overworked healthcare professionals for a medical note (not to mention further spreading of the virus). We do not recommend employers request a note, but if you feel there is fraud occurring please contact our law firm. Employers are allowed to require reasonable notice from an employee to use this time initially, and to continue using the time.

 

Can I require my employee to find a replacement worker to cover their hours?

No.

 

How will my employees be notified of this available benefit?

The employer is required to post a notice no later than 7 days after the Act takes effect. The DOL is creating a notice for Employer use.

 

My Company cannot afford to pay this, is there another option?

No, not at this time. However, the DOL shall have authority to issue regulations for good cause if the employer has less than 50 employees and “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” It is unclear if this will be a law applicable to all small employers or an exemption on a case-by-case basis.

Emergency Paid Family Leave 

What is the Emergency Paid Family Leave?

It is an additional form of a protected leave for employees who have been affected by school and/or daycare closures due to the Coronavirus and must stay home with their children.

 

Which employers are required to provide time off under the Emergency Paid Family Leave?

All private sector employer that have less than 500 workers (regardless of FT or PT status). This means all small to medium size employers (there is no minimum).

 

Which employees are eligible to use the Emergency Paid Family Leave?

Any employee who has worked for the company for at least 30 calendar days, and cannot work or telework due to the need for leave to care for his or her son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. 

 

How is a child care provider defined?

This means a person who receives compensation for providing childcare services on a regular basis.

 

How much Emergency Paid Family Leave time is my employee entitled to take?

The employee is entitled to take up to 12 weeks of protected time off to care for their child during the school or daycare closure.

 

Is the Emergency Paid Family Leave paid?

The first 10 days are unpaid (however an employee can use the emergency sick leave noted above for the first 10 days). An employee who does not have emergency sick leave available at the start of this leave may also substitute other available paid leave. After the first 10 days, the employer must pay the employee at least two-thirds of their regular rate of pay. The paid leave is capped at $200 per day and $10,000 in the aggregate.

 

How do I calculate the Emergency Paid Family Leave pay for part-time employees?

Part-time workers are to receive paid leave equivalent to their average hours they are normally scheduled to work. If the employee is a variable schedule employee, the employer must pay them the average hours worked over the last 6 months up to the date the leave starts. If the employee has not worked for the employer for 6 months then the employer must pay the employee the reasonable expectation of hours of the employee at the time of hiring that the employee would have been expected to work.

 

Is the employee required to provide notice to use the Emergency Paid Family Leave?

Yes, the employee is expected to provide the employer reasonable notice for the leave if practicable.

 

Can I require a note for employees to use the Emergency Paid Family Leave?

No, the Act does not state that this is a requirement, but a reasonable inquiry is likely acceptable (i.e. asking what school the child goes to in order to verify the school closure dates).

 

Do I have to bring the employee back to the same position at the end of the Emergency Paid Family Leave?

Yes, generally, the employee on leave must be restored to his or her prior position; however, this requirement does not apply to employers with fewer than 25 employees if the position held by the employee on leave no longer exists due to economic conditions or other changes in the employer’s operating conditions caused by the coronavirus pandemic, and the employer makes reasonable efforts to restore the employee to an equivalent position.

 

My Company cannot afford to pay the Emergency Paid Family Leave, is there another option?

No, not at this time. However, the DOL shall have authority to issue regulations for good cause if the employer has less than 50 employees and “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” Again, there is not clarity on what this means and how it will be applied at this time.

 

As noted above, these laws are brand new and a bit ambiguous. We have done our best to break down the regulations in an easy-to-read FAQ format, but please contact McKague Rosasco LLP 916.672.6552 with any questions pertaining to these two new regulations.

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