Baby It’s COVID Outside: Emergency Paid Sick Leave for the New COVID-19 Spikes

20201124_104652-203x300The weather is getting colder and nationally, the United States is experiencing a new spike in COVID-19 cases. The country is trying to jump multiple hurdles all at the same time and one of them happens to be dealing with the new increase in people contracting the virus. Thankfully, the legislation that dealt with the first wave of the virus is still here to help supply leave due to sickness. The “Families First Coronavirus Response Act” or FFCRA provides relief to anyone who falls ill because of COVID-19 between now and December 31, 2020 when the Act expires. This short window of application may be extended or replaced by further legislation, but whether that will occur before the deadline passes is unclear. However, it is still worthwhile to examine what mechanisms are in place to deal with sick leave currently. One mechanism that Congress added as part of the FFCRA is the “Emergency Paid Sick Leave Act” or EPSLA. EPSLA gives paid sick leave to certain employees if they fall ill or are caring for someone who falls ill from COVID-19. To determine whether EPSLA covers you, we have to ask 4 main questions: 1) Are you an employee who EPSLA covers; 2) Is your employer required to give you paid sick leave under EPSLA; 3) How much leave can you take and what does that leave look like; and 4) What are your options if you think your employer is violating EPSLA. Each question will be addressed in turn.

  1. 1) Are you an employee who EPSLA covers? 

EPSLA only requires some employers to provide paid sick leave for some employees. Specifically, it covers employees who must self-quarantine due to the advice of a healthcare professional like a doctor, employees experiencing symptoms and attempting to get tested, employees who are taking care of someone in the previous two situations, or employees who are caring for a son or daughter due to childcare/school closures. The Act also leaves wiggle room for other employees in substantially similar conditions to be covered, but it is subject to the decisions of the Secretary of Health and Human Services. There is no length of time you have to be employed before you become eligible for this leave. As a note, unfortunately, this Act does not provide the same relief for employees who are health care providers or emergency responders. 

  1. 2) Is your employer required to give you paid sick leave under EPSLA? 

Only specific employers are required under EPSLA to give employees paid sick leave in the case of COVID-19. There is little differentiation between private versus public employers, but each one has carve-outs for certain employers that are not subject to the requirements. Private employers that employ 500 or less employees are required to provide leave. There is an exception however for small businesses that employ less than 50 employees. Small businesses are exempt from providing paid leave to employees who are caring for children whose school or childcare option has closed if doing so would endanger their business. Public employers like the government also must provide EPSLA leave like private employers. However, employers who employ health care providers e.g. doctors and nurses or emergency responders are exempt. 

  1. 3) How much leave can you take and what does that leave look like? 

If you as an employee are covered and your employer is covered, then we turn to how much leave you can take and what restrictions apply depending on whether you work part-time or full-time. If you are a full-time employee, you are entitled to 80 hours of paid sick leave. If you are a part-time employee, however, then you get the same amount of leave as the average amount of hours you work over a two-week period. For example, if you worked, on average, 30 hours over a two-week period, then you would be eligible for 30 hours of paid leave under EPSLA. There are two things to note about taking this leave. The first is that the leave does not roll over to the next year as in if you do not need to take this leave before December 31, 2020, then you cannot claim it next year (if Congress does not pass new legislation extending this coverage). The second is that your employer cannot require you to find a replacement to cover your hours before taking this leave or require you to use other paid leave before utilizing EPSLA leave.  

  1. 4) What are your options if you think your employer is violating EPSLA? 

Within EPSLA there is a section that says an employer cannot discriminate against an employee who utilizes this leave. This means that an employer cannot for example discipline or discharge an employee who takes this paid leave, speaks up about taking this leave or participates in an investigation into someone else’s claim against an employer for violations of this Act. 

In conclusion, EPSLA provides mandatory paid sick leave for a large swath of employees to help relieve the uncertainty that may come from contracting COVID-19. This brief question and answer based article should give you an overview of the coverage. If you believe than an employer has failed to provide this leave, acted against you for taking this leave, or you have questions about coverage please reach out to our firm and we can explore any options you may have together.

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