U.S. emergency employee leave legislation

On March 18, the United States enacted the Families First Coronavirus Response Act, a package of legislation which includes emergency paid sick leave and family and medical leave requirements. These temporary provisions cover employers with fewer than 500 employees effective April 2, 2020, and will sunset on December 31, 2020. The Department of Labor is authorized to issue regulations exempting small employers (those with fewer than 50 employees) if compliance would jeopardize their ability to operate. No regulations have yet been issued.

Emergency paid sick leave

Under the Emergency Paid Sick Leave Act, all employees of covered employers are eligible for Emergency Paid Sick Leave immediately, with no minimum period of employment. Full-time employees are eligible for 80 hours (two weeks) of leave. Part-time employees are entitled to leave for the average number of hours they work over a two-week period.

Emergency Paid Sick Leave is payable at the employee’s normal rate of pay, subject to a cap of $511 per day and $5,110 in the aggregate, in any one of the following circumstances, including if the employee:

  • is subject to a federal, state or local quarantine or isolation order; or
  • has been advised by a health care provider to self-quarantine; or
  • is experiencing COVID-19 symptoms and is seeking medical treatment.

Emergency Paid Sick Leave is payable at two-thirds of the employee’s normal rate, subject to a cap of $200 per day and $2,000 in the aggregate, in any one of the following circumstances, including if the employee is:

  • caring for someone subject to an official quarantine or isolation order; or
  • caring for a son or daughter whose school is closed or whose child care provider is not available because of COVID-19 precautions; or
  • experiencing substantially similar conditions as may be specified by the Secretary of Health and Human Services.

Emergency family and medical leave

Under an expansion to the Family and Medical Leave Act, employees of covered employers who have been employed for at least 30 days are entitled to 12 weeks of Emergency Family and Medical Leave if they are unable to work (or telework) because they need to care for a son or daughter under 18 years of age due to school closures or the unavailability of a child care provider because of COVID-19 precautions. Other details include the following:

  • The first 10 days of leave are unpaid. Employees may elect (but may not be required) to substitute Emergency Paid Sick Leave or other available paid leave (such as vacation or personal days) for this unpaid period.
  • After the first 10 days, employees are entitled to be paid two-thirds of their regular pay, capped at $200 per day and $10,000 in the aggregate.
  • Employees are entitled to be restored to their positions when they return from Emergency Family and Medical Leave.

Payroll tax credits

Employers will be able to claim a refundable credit against payroll taxes for the leave they pay under these emergency provisions, subject to regulations to be issued by the Treasury Department.

New York emergency leave

Also on March 18, New York State enacted a COVID-19 emergency sick leave statute that applies to all employers in the state. Employees who are subject to a mandatory or precautionary order of quarantine or isolation by a state or local authority are entitled to leave for the duration of the order. Whether and how long the leave must be on a paid basis depends on the size (number of employees and net income) of the employer. Benefits under the state act are coordinated with the federal emergency leave provisions without duplication, so employees are entitled to the greater of the state or federal benefits.

Read all our coronavirus-related updates on our COVID-19 guidance for organizations resource page.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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