Emergency Paid Sick Leave Act (EPSLA)
The EPSLA requires certain employers to provide emergency sick leave to any employee with a qualifying need.
Who must comply with the Act?
The EPSLA requires private employers with fewer than 500 employees and some government employers to provide two weeks (80) hours of paid sick leave for eligible employees.
What employees are eligible for emergency paid sick leave (EPSL)?
All employees (full-time and part-time) are eligible for EPSL, regardless of the duration of their employment.
Under what circumstances are employees allowed to take EPSL?
An employee qualifies for emergency paid sick leave if he or she is unable to work or telework because:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- The employee is advised by a health care provider to self-quarantine due to COVID-19 concerns;
- The employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
- The employee is caring for an individual (no longer limited to just family members) subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
- The employee is caring for his or her child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
All of my employees are allowed to telework. Am I still required to provide emergency sick leave?
The employee must be unable to work or telework because of one of the 6 reasons outlined above. The Secretary of Labor will issue regulations providing additional guidance prior to the effective date of the Act.
How many hours of EPSL am I required to provide employees who are eligible for leave?
A full-time employee is eligible for 80 hours of EPSL, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two (2) week period.
If the part-time employee’s hours change from week to week, the employer must determine the average number of hours worked during the prior six (6) months and provide leave equal to the number of hours they typically work in a two-week period.
If EPSL leave is no longer needed by the employee, benefits cease on the next regularly scheduled payday.
How much am I required to pay employees who qualify for this leave?
Employers are required to provide up to two weeks of paid sick leave for full-time and part-time employees at the
employee’s regular rate of pay
who need time off for any of the coronavirus-related qualifying reasons 1, 2 or 3 listed above or
two-thirds of the employee’s regular rate of pay
to care for qualifying reasons 4, 5, or 6 listed above.
EPSL wages are limited to $511 per day up to $5,110 total per employee for their own use (reasons 1, 2 or 3 listed above) and up to $200 per day up to $2,000 total to care for others and any other substantially similar condition (reasons 4, 5 or 6 listed above).
Will the EPSL carry over to the following year?
Emergency paid sick leave will not carry over to the following year and may be in addition to any paid sick leave currently provided by employers.
May I require my employees to use company provided accrued Paid Time Off (“PTO”) or vacation pay in lieu of benefits under the EPSLA?
No. An employer may not require an employee to use other paid leave provided by the employer before the employee uses the EPSL. EPSL must be provided in addition to whatever paid leave is already provided under the employer’s policies, and the EPSLA does not alter an employer’s obligation to comply with applicable state or local leave laws.
What is the applicability of my existing sick leave policy?
The EPSLA takes precedence over all existing policies and may be in addition to any paid sick leave currently provided by employers. The employer is not allowed to require employees to utilize existing policies in lieu of EPLSA benefits
Can I require my employees to provide advance notice of leave?
Where leave is foreseeable, an employee should provide as much prior notice of leave to the employer as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving emergency paid sick time.
Am I allowed to terminate an employee because they seek leave under the EPSLA?
No. The EPSLA specifically contains provisions that prohibit employers from terminating an employee seeking EPSLA benefits.
Will I be repaid for providing these emergency sick leave benefits?
Yes. Employers will be eligible to receive repayment in the form of certain dollar-for-dollar tax credits. Please see the discussion below under
Tax Credits for Businesses
Am I required to post any notices about the EPSLA?
Yes. A model poster will be released soon by the Secretary of Labor. Employers will be required to post this poster in a conspicuous place within 7 days of the effective date.
I own a small business. How will I be able to pay 2 weeks of EPSL, especially during these difficult economic times?
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide emergency sick leave if the leave requirements would “jeopardize the viability of the business as a going concern.”
The U.S. Secretary of Labor also may exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave.
What if I fail to comply with the EPSLA?
Employers who fail to comply with the EPSLA will be deemed to have violated the minimum wage requirements of the Fair Labor Standards Act (FLSA) and will be subject to fines and penalties. For those employers that willfully violate the EPSLA, they will be subjected to liquidated damages.
What is the effective date and expiration date of the EPSLA?
The EPSLA will become effective on April 2, 2020 and remain in effect until December 31, 2020.