As with any legislation that is enacted quickly, a number of unanswered questions will likely arise about the EPSLA and EFMLEA. Our hope is that the U.S. Department of Labor (DOL) will swiftly issue regulations and advisories that address the most pressing questions, including the biggest question most employers have, which is:

If an employer provides paid sick leave to an employee prior to the date the EPLSA takes effect (April 2) for reasons covered under the EPSLA, is the employer required to provide an additional 10 days of emergency paid sick leave (with or without taking the tax credit) to comply with the EPSLA?

The original version of the EPSLA specifically required employers to provide emergency paid sick time in addition to any paid sick leave provided by the employer prior to enactment of the Act; however, the amended version of the bill that was signed by the President did not include this language and is silent on the matter.

Until we receive clarification from the DOL about how existing paid sick leave policies interact with the EPSLA, employers risk liability if they have provided sick leave to an employee prior to April 2 for reasons related to the EPSLA and refuse to provide an additional 10 days. 

As you review your obligations under the EPSLA and the EFMLEA, here a few important points to keep in mind:

— Business Closures or Employer Requirement for Leave: Based on the literal or plain meaning of the language in the EPSLA and EFMLEA, it does not appear that paid sick or paid family (childcare) leave are available to employees who are unable to work due to a business closure, or situations where an employer requires an employee to leave work, such as when an employer prohibits an employee from reporting to work due to COVID-19 concerns. It appears that the pay and job protection benefits under these Acts are only available to employees under the specific circumstances listed.

— Laying Off or Furloughing Employees on Paid Family Leave: The EFMLEA has job restoration provisions for employers with fewer than 25 employees (outlined above) that exceed FMLA job restoration provisions. Employers with 25 or more employees are subject to the job restoration requirements in the FMLA for employees who use paid family or medical leave.

Clients who find it necessary to lay off or furlough employees who are on paid family leave should contact our office to discuss applicable regulations and requirements for their business.

— Leave to Care for Any Individual: The EPSLA provision related to caring for another person who is under a quarantine order or self-quarantine based on a recommendation from a healthcare provider permits the employee to care for any individual, not just a family member. 

— EFMLEA Unpaid Days: The first 10 days of emergency family and medical leave are unpaid; however, employees can use emergency paid sick leave to cover this time. Both Acts provide for time off due to childcare needs and both require the same rate of compensation (two-thirds of the employee’s regular rate of pay).

— Length of Service Requirements: There is no length-of-service requirement for an employee to use emergency paid sick leave; it is available immediately upon hire to both full- and part-time employees. Emergency family and medical leave (up to 12 weeks of leave for childcare needs) is available to full- and part-time employees after 30 days of employment.

— Healthcare Provider Definition and Advice: An employee is eligible for emergency paid sick leave when the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19. In addition, an employee is also eligible for paid sick leave to care for any other individual under this same circumstance.

Under the Act, the term “healthcare provider” has the same meaning given to this term in the Family and Medical Leave Act, which means that it is broadly defined.

In addition, as a practical matter, employees may not be able to provide documentation to support the healthcare provider’s advice. Most doctors’ offices and clinics are overwhelmed with patient needs and may find it difficult to provide documentation pertaining to a self-quarantine recommendation. In addition, an employee (or other individual) could receive a recommendation to self-quarantine from a healthcare provider via phone. In light of these realities, when necessary, we recommend that employers accept verbal confirmation of a healthcare provider's recommendation from the employee.

— Pay for Both Sick and Family Leave: Language in the revised Act pertaining to the payment of emergency sick and family leave time is confusing. It is unknown if an employer who compensates an employee above the daily maximum rate in the Act will be eligible for a tax credit equal to at least the daily maximum rate, or if the tax credit is lost. Language addressing this was removed from the original House bill.

To play it safe, until the DOL issues its regulations, employers should not exceed the compensation amounts for paid sick and paid family leave cited in the Acts ($511 per day or $200 per day, depending on the reason for the leave).

Last week, the U.S. Department of Labor i mplemented new guidance for states offering unemployment insurance (UI) to assist Americans affected by COVID-19. The guidance permits significant flexibility for states to amend their laws to provide UI benefits in multiple situations related to COVID-19.

Federal law does not require an employee to quit in order to receive benefits due to the impact of COVID-19. In addition, states are now allowed to pay benefits when:

— An employer temporarily ceases operations due to COVID-19, preventing employees from coming to work.

— A n individual is quarantined with the expectation of returning to work after the quarantine is over.

— An individual leaves employment due to a risk of exposure or infection or to care for a family member.

In addition to these changes, the Emergency Unemployment Insurance Stabilization and Access Act of 2020 (part of the Families First Coronavirus Response Act) provides states with emergency funding and requires the following:

— Employers must provide notification of the availability of unemployment compensation to employees at the time of separation. The Department of Labor will be providing model language for this notification.

— To receive the funding, states must demonstrate that they have taken or will take steps to ease eligibility requirements and access to unemployment compensation for claimants, including waiving work search requirements and the waiting week, and non-charging employers directly impacted by COVID-19 due to an illness in the workplace or direction from a public health office to isolate or quarantine workers .

Many states have already amended their unemployment insurance practices to provide benefits to employees who have been negatively impacted by COVID-19 mitigation efforts. For example, in Florida , individuals who may be eligible for unemployment compensation include:

— Those who are quarantined by a medical professional or a government agency.

— Those who are laid off or sent home without pay for an extended period by their employer due to COVID-19 concerns.

— Those who are caring for an immediate family member who is diagnosed with COVID-19.

Check your state UI agency website for the latest information about benefits eligibility for any employees impacted by COVID-19 mitigation efforts (e.g., layoffs, furloughs, reduction of work hours, and extended leaves).

After passing the Families First Coronavirus Response Act late yesterday, the Senate began crafting a third coronavirus bill that could include direct payments to individual Americans and small businesses affected by government containment policies . This financial assistance bill could cost in excess of $1 trillion and is expected to be finalized by early next week. Small business owners with cash flow challenges and concerns about providing the newly required paid sick leave benefits are anxiously awaiting passage of the third bill.

Our hope is that Congress will move quickly to approve payments that provide critically needed support to individuals and businesses.