April 22, 2020

Families First Coronavirus Response Act FAQ

Updated as of April 22, 2020

The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020, and took effect on April 1, 2020. The FFCRA, which provides temporary relief to eligible employees affected by the COVID-19 pandemic, contains two laws that provide such relief: (1) a new paid sick leave benefit (Emergency Paid Sick Leave Act or EPSLA), and (2) an expansion of the Family and Medical Leave Act (FMLA) (Emergency Family and Medical Leave Expansion Act or EFMLA).

Below are answers to commonly asked and anticipated questions regarding the FFCRA’s paid leave provisions. The information provided is based on the final text of the legislation, legislative history, the regulations regarding the implementation of the FFCRA issued by the U.S. Department of Labor (DOL) on April 1, 2020 (formally referred to as the DOL’s “Temporary Rule”) and the news release issued by the U.S. Department of the Treasury, the DOL and the Internal Revenue Service (IRS); however, unknowns remain regarding this new law. The DOL released its first round of guidance on March 24, 2020, and has released additional guidance since. We will continue to provide updates to this guidance accordingly.

Does the FFCRA apply to my business?

The FFCRA applies to employers with fewer than 500 employees as well as certain governmental entities.

Federal employees are eligible to take paid sick leave under the EPSLA. However, only some federal employees are eligible to take expanded family and medical leave under the EFMLA. A federal employee’s eligibility to take expanded family and medical leave will depend on whether they are covered under Title I or Title II of the FMLA. Federal employees should consult with their agency regarding their eligibility for expanded family and medical leave. The U.S. Office of Personnel Management will provide information on federal employee coverage.

To determine whether the FFCRA is applicable to your business, you must count the number of employees that are working for you as of the date the requesting employee’s leave is to be taken. If the number of employees is fewer than 500, then the FFCRA applies to the business and it must provide the paid benefits under the new law.

Businesses must count:

  • Full-time and part-time employees within the United States (which includes any state of the United States, the District of Columbia, or any territory or possession of the United States).
  • Employees on leave.
  • Temporary employees who are jointly employed by the business and another employer (regardless of whether the jointly employed employees are maintained on only the business’s or another employer’s payroll).
  • Day laborers supplied by a temporary agency (regardless of whether the business is the temporary agency or the client firm if there is a continuing employment relationship).

Workers who are independent contractors under the Fair Labor Standards Act (FLSA) rather than employees are not considered employees for purposes of the 500-employee threshold

Can public sector employees take leave under the FFCRA?

Employees are generally entitled to paid sick leave under the EPSLA if they work for a public agency or other unit of government, with the exceptions noted below. Therefore, they are probably entitled to paid sick leave if, for example, they work for the government of the United States, a state, the District of Columbia, a territory or possession of the United States, a city, a municipality, a township, a county, a parish or a similar government entity subject to the exceptions noted below. The Office of Management and Budget (OMB) has the authority to exclude some categories of U.S. government executive branch employees from taking certain kinds of paid sick leave.

Health care providers and emergency responders may be excluded by their employer from being able to take paid sick leave and expanded family and medical leave under the FFCRA. These coverage limits also apply to public-sector health care providers and emergency responders.

Assuming I am a covered employer, which of my employees are eligible for paid sick leave and expanded family and medical leave?

Both of these new provisions use the definition of employee as provided by the FLSA, thus all of your U.S. (including territorial) employees who meet this definition are eligible, including full-time and part-time employees, as are “joint employees” working on your site temporarily and/or through a temp agency. However, if you employ a health care provider or an emergency responder, you are not required to pay such employee paid sick leave or expanded family and medical leave, except on a case-by-case basis. And certain small businesses may exempt employees if the leave would jeopardize the company’s viability as a going concern.

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity. This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions.

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers or entities to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member, but choose to provide them paid sick leave in the case of their own COVID-19 illness.

Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, firefighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Are there any exceptions for businesses with fewer than 50 employees?

The Secretary of Labor has authority to exempt small businesses with fewer than 50 employees, but only if the requirements would “jeopardize the viability of the business as a going concern.” This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only under the following conditions:

  • The employer employs fewer than 50 employees.
  • Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable due to COVID-19-related reasons.
  • An authorized officer of the business has determined that at least one of the following three conditions is satisfied:
    • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity.
    • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business or responsibilities.
    • There are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and such labor or services are needed for the small business to operate at a minimal capacity.

The DOL encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. An employer that denies a request for leave pursuant to the small business exemption must document and retain the determination by its authorizing officer that it meets the criteria for that exemption. That documentation must be retained for four years but should not be sent to the DOL.

Are the employees of related entities counted together to determine if a company is subject to the FFCRA?

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees each must be counted toward the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the EPSLA and whether expanded family and medical leave must be provided under the EFMLA.

In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA. The integrated employer test under 29 CFR § 825.104(c) focuses on the following factors to determine if two (or more) entities should be treated as a single employer:

  • Interrelation of operations
  • Centralized control of labor relations
  • Common management
  • Common ownership or financial control.

Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the EFMLA.

My business has fewer than 500 employees in the United States but 500 or more globally. Are we required to count employees who reside and work outside the United States to determine if the new law applies to our business?

A business must count all employees working in any state of the United States, the District of Columbia, or any territory or possession of the United States.

Why doesn’t the FFCRA apply to large employers (i.e., those with 500 or more employees)? Is Congress going to propose additional legislation that would apply to such employers?

This threshold is likely because the amounts paid to employees under the new law are related to a payroll tax credit from the government, which essentially means that the government is ultimately picking up most of the tab. Thus, expanding the law to large employers (many of which already have more generous leave policies) would be much more expensive for the government. Currently, we are unaware of any potential legislation that would cover large employers.

Are there any requirements under the FFCRA that affect pay for employees who are working remotely due to COVID-19?

The FFCRA does not require that employers provide paid leave to an employee able to work all regularly scheduled hours from home despite the impact of COVID-19.

Are covered employers required to provide paid leave under the FFCRA to employees who have been furloughed or laid off due to COVID-19?

No. Employees who have been furloughed because their employer does not have enough work or business for them are not entitled to then take paid sick leave or expanded family and medical leave. However, they may be eligible for unemployment insurance benefits. They should contact their state’s workforce agency or state unemployment insurance office for specific questions about their eligibility.

How long does my business have to come into compliance with this new law?

The DOL will not bring enforcement actions against any public or private employer for violations of the FFCRA occurring within 30 days of the enactment of the FFCRA, i.e., March 18, 2020, through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the FFCRA. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the DOL receives a written commitment from the employer to comply with the FFCRA in the future. If the employer violates the FFCRA willfully, fails to provide a written commitment to future compliance with the FFCRA, or fails to remedy a violation upon notification by the DOL, the DOL reserves its right to exercise its enforcement authority during this period. After April 17, 2020, this limited stay of enforcement will be lifted, and the DOL will fully enforce violations of the FFCRA, as appropriate and consistent with the law.

What if my business cannot afford to comply with the FFCRA’s paid leave requirements?

Covered employers can take immediate advantage of the paid leave credits and retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not enough to cover the cost of the paid leave, then employers can seek an expedited advance from the IRS by submitting a streamlined claim (see https://www.irs.gov/individuals/international-taxpayers/streamlined-filing-compliance-procedures).

How long is this new law in effect?

Unless or until it is extended by subsequent legislation, the FFCRA will expire on December 31, 2020.

What if I have an employee who has already been on sick leave due to COVID-19 prior to this new law? Am I required to retroactively pay that employee under the FFCRA?

The FFCRA becomes effective April 1, 2020, and the paid leave benefits available under FFCRA are not retroactive.

How should businesses count hours worked by a part-time employee for purposes of paid sick leave under EPSLA or expanded family and medical leave under EFMLA?

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work:

  • If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.
  • If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

What if a full-time employee’s hours vary week-to-week?

Employers should use the same method for calculating full-time employees’ hours with varying schedules as they do part-time employees. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work.

If the normal hours scheduled are unknown, or if the full-time employee’s schedule varies, you must use a six-month average to calculate the average daily hours. This estimate must be based on the average number of hours your employee was scheduled to work per calendar day (not workday) over the six-month period ending on the first day of paid sick leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave. Such a full-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.

For Example: Considering two employees with irregular schedules who take leave on April 13, 2020, the six-month period would consist of 183 calendar days from October 14, 2019, to April 13, 2020.

  • During that six-month period, the first employee worked 1,150 hours over 130 workdays, and took a total of 50 hours of personal and medical leave. The total number of hours the employee was scheduled to work, including all leave taken, was 1,200 hours. The number of hours per calendar day is computed by dividing 1,200 hours by the 183 calendar days, which results in 6.557 hours per calendar day. The two-week average is computed by multiplying the per calendar day average by 14, which results in 91.8 hours. Since this is greater than the statutory maximum of 80 hours, the first employee, who works full-time, is therefore entitled to 80 hours of paid sick leave.
  • The second employee, in contrast, worked 550 hours over 100 workdays, and took a total of 100 hours of personal and medical leave. The total number of hours the employee was scheduled to work, including all leave taken, was 650 hours. The number of hours per calendar day is computed by dividing 650 hours by the 183 calendar days, which is 3.55 hours per calendar day. The two-week average is computed by multiplying the per calendar day average by 14, which results in 49.7 hours. The second employee, who works part-time, is therefore entitled to 49.7 hours of paid sick leave.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Do I include overtime hours when calculating pay due to employees under the FFCRA?

Yes. The EFMLA requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the EPSLA requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the EPSLA is capped at 80. It’s also important to note that there are still daily and aggregate caps placed on any paid leave under the EPSLA and EFMLA. Pay does not need to include a premium for overtime hours under either the EPSLA or the EFMLA.

How does a business determine an employee’s regular rate of pay for purposes of the FFCRA?

The regular rate of pay used to calculate an employee’s paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave. If the employee has not worked for the employer for six months, the regular rate used to calculate the employee’s paid leave is the average of the employee’s regular rate of pay for each week he/she has worked for the employer. Commissions, tips or piece rates paid to employees also should be incorporated into this calculation. To the extent commissions, tips, or piece rates create an irregular rate of pay, you may calculate the regular rate of pay using these steps:

  • First, you must compute the employee’s non-excludable remuneration for each full workweek during the six-month period. Notably, commissions and piece-rate pay counts toward this amount. Tips, however, count only to the extent that you apply them toward minimum wage obligations (i.e., you take a tip credit). Overtime premiums do not count toward your employee’s regular rate. Please note that, unlike when computing average hours, you should not count payments your employee received for taking leave as part of the regular rate.
  • Second, you must compute the number of hours the employee actually worked for each full workweek during the six-month period. Please note that, unlike when computing average hours, you do not count hours when the employee took leave.
  • Third, you then divide the sum of all non-excludable remuneration received over the six-month period by the sum of all countable hours worked in that same time period. The result is the average regular rate.

For an employee who is paid a fixed salary that is understood to be compensation for a specific number of hours of work in each workweek, the average regular rate would be simply the hourly equivalent of that salary. If, however, the fixed salary is to compensate the employee regardless of the number of hours of work in each week, you have to add up the salary you paid your employee over all full workweeks in the past six months and divide that sum by the total number of hours worked in those workweeks. If you lack records for the number of hours your employee worked, you should use a reasonable estimate.

When computing regular rate of pay, it is appropriate to round to the nearest tenth, quarter, or half hour depending on your time keeping principles. However, employers must use a consistent rounding principle for all employees.

If I provided an employee with paid sick leave prior to when the FFCRA became effective on April 1, 2020, do I have to provide additional paid leave under the FFCRA after April 1, 2020, if the employee qualifies for such leave?

Yes. The FFCRA imposes a new paid leave requirement on employers that is effective beginning on April 1, 2020.

Are there any notice requirements that I must provide to employees to inform them of their eligibility?

Employers must post and keep posted a notice of the FFCRA’s requirements. The DOL made a model notice available on March 25, 2020, and employers may, free of charge, download the poster from the WHD website. In addition to posting the notice in a conspicuous place where employees or job applicants at a worksite may view it, an employer may distribute the notice to employees by email, or post the required notice electronically on an employee information website to satisfy the FFCRA requirement. An employer also may directly mail the required notice to any employees who are not able to access information at the worksite, through email, or online. An employer may post or distribute the required information provided in the model notice in a different format, so long as the content is accurate and readable. Although the FFCRA does not require employers to provide a translated notice to employees, the DOL has issued a Spanish language version of the poster. For employers who are covered by the EFMLA but are not covered by the other provisions of the FMLA, posting of this FFCRA notice satisfies their FMLA general notice obligation.

Can I require my employees to provide notice of their need for leave?

An employer may require an employee to follow reasonable notice procedures after the first workday (or portion thereof) for which an employee takes paid sick leave for any reason other than to care for their son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. Whether a procedure is reasonable will be determined under the facts and circumstances of each particular case. Generally, it will be reasonable for notice to be given by the employee’s spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally. The DOL encourages, but does not require, employees to notify employers about their request for paid sick leave or expanded family and medical leave as soon as practicable. 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.

For paid sick leave or expanded family and medical leave to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons, if that leave was foreseeable, an employee shall provide the employer with notice of such leave as soon as practicable. 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.

Notice may not be required in advance and may only be required after the first workday (or portion thereof) for which an employee takes leave.

What documents must my employees provide when they take paid sick leave or expanded family and medical leave?

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave. Such documentation must include a signed statement containing the following information: (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.

An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave. An employee requesting paid sick leave because he/she is subject to a federal, state or local quarantine or isolation order related to COVID-19 must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. An employee requesting paid sick leave because he/she has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. An employee requesting paid sick leave because they are caring for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. An employee requesting to take paid sick leave or family and medical leave because he/she needs to care for his/her child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons must provide the following information: (1) the name of the child being cared for; (2) the name of the school, place of care or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

It should be noted that the IRS requires additional information for employers to receive the tax credit.

What records do I need to keep in order to receive the tax credit?

An employer also may request an employee to provide such additional materials needed for the employer to support a request for tax credits pursuant to the FFCRA. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

An employer is required to retain all documentation provided by the employee for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his/her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain such information for four years.

To claim tax credits from the IRS, an employer is advised to maintain the following records for four years:

  • Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework, and paid sick leave and expanded family and medical leave.
  • Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
  • Copies of any completed IRS Forms 7200 that the employer submitted to the IRS.
  • Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third-party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941.
  • Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions and information for the procedures that must be followed to claim a tax credit. For more information, please consult these FAQs from the IRS.

Can an employee take his or her paid sick leave or expanded family and medical leave intermittently while teleworking?

Although employers are not required to provide this leave on an intermittent basis, an employer may permit leave to be taken intermittently if the employee is unable to telework his/her normal schedule of hours due to one of the qualifying reasons in the EPSLA. In that situation, the employee and his/her employer may agree that the employee may take paid sick leave intermittently while teleworking. Similarly, if the employee is prevented from teleworking his/her normal schedule of hours because he/she needs to care for his/her child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the employee and his/her employer may agree that the employee can take expanded family medical leave intermittently while teleworking.

An employee can take intermittent leave in any increment, provided that the employee and his/her employer agree. For example, if you agree on a 90-minute increment, the employee can telework from 1:00 p.m. to 2:30 p.m., take leave from 2:30 p.m. to 4:00 p.m., and then return to teleworking.

The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs and is supportive of such voluntary arrangements that combine telework and intermittent leave.

The FFCRA does not require an employer and employee to reduce to writing or similarly memorialize their agreement. But, in the absence of a written agreement, there must be a clear and mutual understanding between the parties that the employee may take intermittent paid sick leave or intermittent expanded family and medical leave, or both.

May I choose to or require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

Paid sick leave under the EPSLA is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with—that is, cover the same hours as—paid sick leave under the EPSLA. You and your employee may, however, agree to supplement the paid sick leave with other preexisting leave up to the employee’s normal earnings.

In contrast, an employer may require that any paid leave available to an employee under the employer’s policies to allow the employee to care for his or her child because of a lack of childcare run concurrently with paid expanded family and medical leave. The employer must pay the full salary during the leave until the employee has exhausted available paid leave under the employer’s plan—including vacation and/or personal leave, though typically not sick or medical leave. However, the employer may only obtain tax credits for wages paid at two thirds of the employee’s regular rate of pay, up to the daily and aggregate limits in the act ($200 per day or $10,000 total). If the employee exhausts available paid leave under the employer’s plan, but has more paid expanded family and medical leave available, the employee will receive any remaining paid leave at two thirds salary and subject to daily and aggregate limits in the Act.

Finally, an employee may elect—but may not be required by the employer—to take paid sick leave under the EPSLA or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. If, however, an employee has used some or all paid sick leave under the EPSLA, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid. During this period of unpaid leave under the EFMLA, the employee may choose—but the employer may not require the employee—to use paid leave that would be available to the employee to take in order to care for the employee’s child because child care is not available.

If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them

You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.

Do employees have the right to return to work if they are taking paid sick leave or expanded family and medical leave under the FFCRA?

Generally, yes. In light of congressional direction to interpret requirements among the Acts consistently, the DOL’s Wage and Hour Department (WHD) clarifies that the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.

In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave. Thus, an employer is prohibited from firing, disciplining or otherwise discriminating against an employee because that employee took paid sick leave or expanded family and medical leave. Nor can an employer fire, discipline or otherwise discriminate against an employee because that employee filed any type of complaint or proceeding relating to these Acts, or has or intends to testify in any such proceeding.

However, employees are not protected from employment actions, such as layoffs, that would have affected them regardless of whether they took leave. This means an employer can lay off an employee for legitimate business reasons, such as the closure of its worksite. An employer must be able to demonstrate that the employee would have been laid off even if that employee had not taken leave.

An employer also may refuse to return you to work in your same position if you are a highly compensated “key” employee as defined under the FMLA, or if the employer has fewer than 25 employees, and you took leave to care for your own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist:

  • Your position no longer exists due to economic or operating conditions that affect employment and due to COVID-19-related reasons during the period of your leave.
  • The employer made reasonable efforts to restore you to the same or an equivalent position.
  • The employer makes reasonable efforts to contact you if an equivalent position becomes available.
  • The employer continues to make reasonable efforts to contact you for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after your leave began, whichever is earlier.

Does an employee qualify for leave for a COVID-19-related reason even if they have already used some or all of their leave under the FMLA?

Eligible employees are entitled to paid sick leave under the EPSLA regardless of how much leave they have taken under the FMLA.

However, if an employer was covered by the FMLA prior to April 1, 2020, an employee’s eligibility for expanded family and medical leave depends on how much leave he/she has already taken during the 12-month period that the employer uses for FMLA leave. An employee may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If the employee has taken some, but not all, 12 workweeks of his/her leave under FMLA during the current 12-month period determined by his/her employer, he/she may take the remaining portion of leave available. If the employee has already taken 12 workweeks of FMLA leave during this 12-month period, he/she may not take additional expanded family and medical leave.

For example, assume an employee is eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. The employee therefore has 10 weeks of FMLA leave remaining. Because EFMLA leave is a type of FMLA leave, the employee would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any EFMLA leave the employee takes would count against his/her entitlement to preexisting FMLA leave.

If the employer only becomes covered under the FMLA on April 1, 2020, this analysis does not apply.

Can an employee take paid sick leave or expanded family and medical leave to care for his/her child who is 18 years old or older?

It depends. Under the FFCRA, paid sick leave and expanded family and medical leave include leave to care for one’s child when his or her school or place of care is closed or child care provider is unavailable, due to COVID-19-related reasons. This leave may be taken only to care for an employee’s non-disabled child if he or she is under the age of 18. If an employee’s child is 18 years of age or older with a disability and the child cannot care for himself or herself due to that disability, the employer may take paid sick leave and expanded family and medical leave to care for him or her if his or her school or place of care is closed or his or her child care provider is unavailable, due to COVID-19-related reasons, and the employee is unable to work or telework as a result.

In addition, paid sick leave is available to care for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. If an employee has a need to care for his child age 18 or older who needs care for these circumstances, the employee may take paid sick leave if he/she is unable to work or telework as a result of providing care. But in no event may the employee’s total paid sick leave exceed two weeks.

Emergency Family and Medical Leave Expansion Act

What are covered employers required to provide to their employees under the EFMLA?

EFMLA requires covered employers to provide up to 12 weeks of expanded FMLA leave, unpaid for the first 10 days (which are effectively covered by the EPSLA), and then paid at two thirds the employee’s regular rate of pay for the hours the employee would be normally scheduled to work (but capped at $200 per day and $10,000 in the aggregate). The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, employees will not receive more than $200 per day or $12,000 for the 12 weeks that include both paid sick leave and expanded family and medical leave when they are on leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons.

Leave under the EFMLA is available to anyone after 30 days of employment for time to care for the employee’s son or daughter if the child’s school/child care provider is unavailable due to COVID-19 and the employee is unable to work (or telework).

What does it mean to be unable to work because of a need to care for one’s child?

An employee can take leave under the FFCRA if the employee is unable to work because of a need to care for his/her son or daughter if:

  1. The child’s school or place of care has closed; or
  2. The child care provider is unavailable, due to COVID-19-related reasons.

An employee may take paid sick leave to care for his/her child only when the employee needs to, and actually is, caring for his/her child. Generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian or the usual child care provider — is available to provide the care the employee’s child needs.

Who is a “child care provider” under the FFCRA?

The term “child care provider” means a provider who receives compensation for providing child care services on a regular basis. The term includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated or registered under state law and satisfies the state and local requirements. Under the FFCRA, the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.

What is a “place of care”?

A “place of care” is a physical location in which care is provided for the child. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.

Which employees qualify for additional leave time under EFMLA?

All employees who have worked for the covered employer for at least 30 calendar days.

What does it mean for an employee to have “been employed for at least 30 calendar days” for purposes of EFMLA?

An employee is considered to have been employed by an employer for at least 30 calendar days if the employer had that employee on its payroll for the 30 calendar days immediately prior to the day the employee’s leave would begin. For example, if an employee wants to take leave on April 1, 2020, he/she would need to have been on his/her employer’s payroll as of March 2, 2020. This includes an employee who is laid off or whose employment is otherwise terminated on or after March 1, 2020, provided the employer rehires or otherwise reemploys the employee on or before December 31, 2020, and the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or whose employment was otherwise terminated.

If the employee has been working for a company as a temporary employee, and the company subsequently hires that employee on a full-time basis, the employee may count any days he/she previously worked as a temporary employee toward the 30-day eligibility period.

Can an employee take leave under the FMLA over the next 12 months if he/she used some or all of his/her expanded family and medical leave under the EFMLA?

It depends. Employees may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the EFMLA. If they take some, but not all 12, workweeks of their expanded family and medical leave by December 31, 2020, they may take the remaining portion of FMLA leave for a serious medical condition, so long as the total time taken does not exceed 12 workweeks in the 12-month period. Expanded family and medical leave is available only until December 31, 2020; after that, employees may only take FMLA leave.

However, employees are entitled to paid sick leave under the EPSLA regardless of how much leave they have taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. But if an employee takes paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count toward the 12 workweeks in the 12-month period.

Can an employee take expanded family and medical leave intermittently while his/her child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons, if he/she is not teleworking?

Yes, but only with the employer’s permission. Intermittent expanded family and medical leave should be permitted only when the employee and employer agree upon such a schedule. For example, if the employer and employee agree, an employee may take expanded family and medical leave on Mondays, Wednesdays and Fridays, but work Tuesdays and Thursdays, while his/her child is at home because his/her child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons, for the duration of his/her leave.

The DOL encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the DOL supports such voluntary arrangements.

Does the EFMLA expand the definition of who is a covered employer for purposes of the FMLA?

Yes, the EFMLA expands the FMLA’s reach to all employees of employers who employ fewer than 500 employees, including certain governmental entities. This means that there may be companies with facilities that did not previously qualify under existing FMLA criteria (i.e., 50 or more employees within a 75-mile radius) that will now qualify as covered employers based on the overall size of the company (i.e., less than 500 employees). On the other hand, the FMLA covers employers with 500 or more employees, but the EFMLA does not apply to these large employers.

How does the EFMLA apply to multiemployer collective bargaining agreements?

Covered employers who are signatories to a multiemployer collective bargaining agreement (CBA) may fulfill their obligations under the EFMLA by making contributions to a multiemployer fund, plan or program, provided the fund, plan or program enables employees to secure pay based on hours worked under the CBA for emergency leave. Alternatively, an employer may also choose to satisfy its obligations under the EFMLA by other means, provide they are consistent with its bargaining obligations and CBA.

Does the EFMLA expand the qualifying reasons for which an eligible employee may take leave?

The only reason is if the eligible employee is unable to work or telework due to the need to care for a minor child when the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

Are the calculations different for pay under EFMLA depending on whether the employee is part-time or full-time?

The EFMLA does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week affects the amount of pay the employee is eligible to receive.

Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the EFMLA when such leave exceeds 10 days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons.

Emergency Paid Sick Leave Act

Which employees are covered by the EPSLA?

Unlike the EFMLA, there is no minimum 30-day employment requirement for employees of a covered employer to be eligible for paid leave under EPSLA. The EPSLA also provides a paid leave benefit to both full-time and part-time employees.

Does the EPSLA define who is a full-time employee and who is a part-time employee?

A full-time employee is an employee who is normally scheduled to work at least 40 hours each workweek or — if the employee lacks a normal weekly schedule — who is scheduled to work, on average, at least 40 hours each workweek. This weekly average should be computed over the same six-month period as the “Varying Schedule Hours Calculation” for certain part-time employees. Thus, the average hours per workweek for an employee who does not have a normal weekly schedule should be calculated over the six months prior to the date on which leave is requested to determine if he or she is a full-time employee. If the employee has been employed for less than six months, the average hours per workweek is computed over the entire period of employment.

A part-time employee is an employee who is normally scheduled to work fewer than 40 hours each workweek or — if the employee lacks a normal weekly schedule — who is scheduled to work, on average, fewer than 40 hours each workweek.

How does the EPSLA apply to multiemployer collective bargaining agreements?

The EPSLA affords paid sick leave to eligible employees who work under a multiemployer CBA and whose employers pay into a multiemployer plan. Covered employers who are signatories to a multiemployer CBA may fulfill their obligations under the EPSLA by making contributions to the multiemployer fund, plan or program based on the hours of paid sick time to which each eligible employee is entitled under the law while working under the respective CBA. Alternatively, an employer also may choose to satisfy its obligations under EPSLA by other means, provided they are consistent with its bargaining obligations and CBA.

What are covered employers required to provide to their employees under the EPSLA?

The EPSLA requires covered employers to pay employees up to 80 hours of paid sick leave, available for immediate use regardless of length of employment, if the employee cannot work (or telework) because he/she:

Is experiencing symptoms of COVID-19 and seeking a medical diagnosis, which is paid at 100% and capped at $511 per day and $5,110 in the aggregate.

Is subject to a government quarantine or has been told by a health care provider that he or she should self-quarantine due to COVID-19, which is paid at 100% and capped at $511 per day and $5,110 in the aggregate (or is caring for an individual who must quarantine/ self-quarantine for those reasons, which is paid at two thirds the employee’s rate and capped at $200 per day and $2,000 in the aggregate).

Is caring for a son or daughter if his/her school/child care provider is unavailable due to COVID-19 precautions, which is paid at two thirds the employee’s rate and capped at $200 per day and $2,000 in the aggregate.

Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, which is paid at two thirds the employee’s rate and capped at $200 per day and $2,000 in the aggregate.

Is the 80 hours of paid sick leave under the EPSLA per employee or per job?

The absolute upper limit of 80 hours of paid sick leave to which one could potentially be eligible is per person and not per job. Should an employee change positions during the period of time in which the paid sick leave is in effect, he or she is not entitled to a new round of paid sick leave. Once an employee takes the maximum 80 hours of paid sick leave, he or she is not entitled to any paid sick leave from a subsequent employer. If an employee changes positions before taking 80 hours of paid sick leave, then his or her new employer (if covered by FFCRA) must provide paid sick leave until the employee has taken 80 hours of paid sick leave total regardless of the employer providing it.

Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

What constitutes advice by a health care provider to self-quarantine due to concerns related to COVID-19?

Advice to self-quarantine must be based on the health care provider’s belief that the employee either:

  1. Has COVID-19
  2. May have COVID-19
  3. Is particularly vulnerable to COVID-19

The DOL does not define what it means to be “particularly vulnerable to COVID-19” but according to the CDC, those at high risk for severe illness from COVID-19 are:

  1. People aged 65 and older.
  2. People who live in a nursing home or long-term care facility.
  3. People of all ages with underlying medical conditions, particularly if not well controlled, including:
    • People with chronic lung disease or moderate to severe asthma.
    • People who have serious heart conditions.
    • People who are immunocompromised
      • Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications.
    • People with severe obesity (BMI of 40 or higher).
    • People with diabetes.
    • People with chronic kidney disease undergoing dialysis.
    • People with liver disease.
    • Pregnant people.

Other at-risk populations, according to the CDC, may include people experiencing homelessness.

Self-quarantining based on the health care provider’s advice must prevent the employee from working. An employee who is self-quarantining is able to telework, and therefore may not take paid leave for this qualifying reason if:

  1. His or her employer has work for the employee to perform.
  2. The employer permits the employee to perform that work from the location where the employee is self-quarantining.
  3. There are no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.

What does it mean to be experiencing symptoms of COVID-19 and seeking a medical diagnosis?

Symptoms that could trigger this are fever, dry cough, shortness of breath or other COVID-19 symptoms identified by the CDC.

Additionally, paid sick leave taken for this reason must be limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. Thus, an employee experiencing COVID-19 symptoms may take paid sick leave, for instance, for time spent making, waiting for or attending an appointment for a test for COVID-19. But, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.

An employee who is waiting for the results of a test is able to telework, and therefore may not take paid sick leave, if:

  1. His or her employer has work for the employee to perform.
  2. The employer permits the employee to perform that work from the location where the employee is waiting.
  3. There are no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.

What does it mean to be unable to work because you need to care for an individual who is either a) subject to a federal, state or local quarantine or isolation order or b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19?

This qualifying reason applies only if but for a need to care for an individual, the employee would be able to perform work for his or her employer. The employee must have a genuine need to care for the individual. Paid sick leave may not be taken to care for someone with whom the employee has no personal relationship. Rather, the individual being cared for must be an immediate family member, roommate or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.

Can an employee take paid sick leave intermittently while working at his/her usual worksite (as opposed to teleworking)?

It depends on why the employee is taking paid sick leave and whether his/her employer agrees. Unless the employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:

  • You are subject to a federal, state or local quarantine or isolation order related to COVID-19.
  • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless the employee is teleworking, once he/she begins taking paid sick leave for one more of these qualifying reasons, he/she must continue to take paid sick leave each day until he/she either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of the FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

If the employee no longer has a qualifying reason for taking paid sick leave before he/she exhausts their paid sick leave, the employee may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if an employee and his/her employer agree, the employee may take paid sick leave intermittently if the employee is taking paid sick leave to care for his/her child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19-related reasons. For example, if an employee’s child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the employee may take paid sick leave on Mondays, Wednesdays and Fridays to care for his/her child, but work at his/her normal worksite on Tuesdays and Thursdays.

The DOL encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave of less than a full workday for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the DOL is supportive of such voluntary arrangements.

Are covered employers required to pay this benefit under the EPSLA if employees are required to stay home under a “shelter-in-place” or other type of local, state or federal “no-travel” order, as opposed to being required to stay home for self-isolation due to exposure to COVID-19?

Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine or otherwise restrict their own mobility. An employee may take paid sick only if being subject to one of these orders prevents him or her from working or teleworking. Thus, the question is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.

An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee as a result of the order or other circumstances. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order.

Example: If a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.

This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.

Thus, for the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place or stay-at-home orders issued by any federal, state or local government authority that cause the employee to be unable to work even though his or her employer has work that the employee could perform but for the order. This also includes when a federal, state or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.

An employee subject to a quarantine or isolation order is able to telework, and therefore may not take paid sick leave, if:

  • His or her employer has work for the employee to perform.
  • The employer permits the employee to perform that work from the location where the employee is being quarantined or isolated.
  • There are no extenuating circumstances (such as a power outage at home) that prevent the employee from performing that work.

Presumably the DOL’s position would also not permit an employee of a company deemed an “essential business” to refuse to work as a result of a shelter-in-place or stay-at-home order. But the DOL has not yet addressed this open question. Further, the DOL has not addressed the potential scenario where the employee lives in a jurisdiction subject to a shelter-in-place or stay-at-home order but the employer is located in a neighboring jurisdiction without such an order.

Are covered employers getting reimbursed from the government for the paid leave they are required to provide under the EPSLA?

The paid sick leave required under the new law is subsidized by the federal government through tax credits. According to the March 20 news release, employers who pay this benefit will receive 100% reimbursement, which includes reimbursement for health insurance premiums paid by employers for employees taking qualifying sick leave.

How does my business get reimbursed for the paid leave under the EPSLA?

The reimbursement will be an immediate dollar-for-dollar tax offset against payroll taxes. The forthcoming DOL guidance will provide more details on this process, but what we know now is that covered employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave paid, rather than deposit them with the IRS. The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees. For example, if a covered employer paid $4,000 in sick leave and is otherwise required to deposit $9,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $4,000 of the $9,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $5,000 on its next regular deposit date.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able to file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. For example, if a covered employer paid $8,000 in sick leave and was required to deposit $6,000 in taxes, the employer could use the entire $6,000 of taxes in order to make the qualified leave payments and then file a request with the IRS for an accelerated credit for the remaining $2,000.

For how many hours will I need to pay full-time employees under the EPSLA? Does such time run concurrently with the FMLA/EFMLA?

Full-time employees are entitled to 80 hours of paid sick time.

Yes, this time will run concurrently with any time the eligible employee is afforded under the FMLA/EFMLA, but it must be provided even if the employee has exhausted all FMLA leave.

How much will I have to pay part-time employees under the EPSLA?

Part-time employees are counted in the 500-employee threshold; however, the amount of pay for part-time employees is prorated to the number of hours that the employee works, on average, over a two-week period.

What if I already provide paid sick time to my employees? Am I required to provide an additional 80 hours under the EPSLA?

Unfortunately, the law is not clear on this point. But it appears that the EPSLA requirements are in addition to existing sick leave.

What if my business does not comply with the EPSLA?

Covered employers who fail to comply with the EPSLA will be deemed to have violated the Fair Labor Standards Act and will be subject to fines and penalties. Covered employers that are found to have willfully violated the EPSLA will be subject to liquidated damages.

Are employees entitled to 80 hours of paid sick leave for a self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

No. Employees may only take up to two weeks—or 10 days (80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period)—of paid sick leave for any combination of qualifying reasons.

If an employee takes paid sick leave under the EPSLA, does that count against other types of paid sick leave to which they are entitled under state or local law, or their employer’s policy?

No. Paid sick leave under the EPSLA is in addition to other leave provided under federal, state or local law; an applicable CBA; or the employer’s existing company policy.

As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.

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