• Samira Amato

Emergency Paid Sick Leave Act (EPSLA)

Updated: Apr 21

Effective April 01, 2020 covered employers (employers with fewer than 500 employees) are required to provide eligible employees two weeks of paid sick leave at the employee’s regular rate of pay if the employee is unable to work (or telework) due to COVID-19-related absence. See Families First Coronavirus Response Act (FFCRA).[1] Unlike the Family and Medical Leave Act (FMLA), the new Federal legislation does not have the minimum required time that an employee must be working with the employer prior to using the paid sick leave related to COIVD19. However, in order to be eligible for the additional 10 weeks of paid family leave referenced below, an employee must have been employed for at least 30 days. The new Act expires at the end of 2020.


The Department of Labor posted an opinion which suggest that workers are not entitled to sick pay leave if an employer is closed for lack of business or because they are required to close as a result of the Government’s shutdown order or shelter-in-place order.  


Below are some key points from the FFCRA:

Employers must provide sick leave for full-time employees up to two weeks (80 hours) of paid leave, and for part-time employees leave equivalent to the average number of hours worked in a two-week period, if:


  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

  3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

  5. The employee is caring for a child of such employee if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID–19 precautions.

  6. 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.

If an employee takes sick leave due to his or her own quarantine or symptoms (items 1-3 above), the employee must be paid the employee’s regular rate of pay or minimum wage, with a daily maximum of $511.00 USD per day and an aggregate maximum of $5,110.00 USD.

If an employee takes sick leave to care for another individual (items 4-6) due to COVID-19 related issues, the pay rate is two-thirds of an employee’s regular rate of pay with a daily maximum of $200 and an aggregate maximum of $2,000.

The new legislation amends The FMLA of 1993 creating a new “paid leave” requirement for covered employees (who have been on the job for at least 30 days) caring for son or daughter if their school is closed or child care is no longer available due to COVID-19.

A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period. Employer shall provide paid leave for each day of leave (up to 10 weeks) that an employee takes after taking paid sick leave for 10 days.

10 weeks of paid leave: Covered employer must provide paid leave of at least two-thirds of the employee’s regular pay rate for the number of hours the employee would ordinarily be scheduled to work. This requirement is subject to a daily maximum of $200 and an aggregate maximum of $10,000.

The new legislation applies to employers with few than 500 employees. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.


To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria. Department of Labor will be releasing more detail information on this regulation.


The Act also exempts employers of fewer than 50 employees from civil actions by employees for FMLA violations. It is Important to keep in mind that the employer is entitled to credit on payroll taxes for providing the sick leave. Thus, ensure you talk to your tax representative to confirm you qualify and that you are properly submitting your quarterly payroll tax submissions. See the IRS website on what documentation is needed for employers to receive the credit.


It is critical to update yourself with your respective City and State’s guidelines as the requirements change with the growth of the Coronavirus pandemic.


For instance the San Francisco Office of Labor Standards Enforcement enacted a new Sick Leave Ordinance . Some key takeaways from the guidelines are:

  • Employers may not require a doctor’s note or other documentation for the use of paid sick leave taken pursuant to the paid sick leave as relates to this ordinance.

  • Employee can use sick leave if they fall within a definition of a “vulnerable population, a person who is 60 years and older or with a health condition as specified;

  • Employees can use sick leave if it takes time off work because the employee’s business or a work location temporarily ceases;employees can use sick leave due to isolation or quarantine recommendations of public health officials or healthcare providers;

  • Employee can use sick leave if they are providing care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or

  • Employee can use sick leave if they need to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

On April 07, 2020 San Jose City Council passed the COVID-19 Paid Sick Leave Ordinance. This ordinance went into effect immediately and will remain in force through December 31, 2020. The Ordinance is intended to cover employers who are not subject to the the federal Emergency Paid Sick Leave Act (EPSLA). Under this Ordinance employers with more than 500 employees as well as small businesses are now required to provide their employees with paid leave. For more visit this Page.


Posting Requirement - Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

Below are links to notices required for posting:


Poster for federal employees:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Federal.pdf


Poster for non-federal employees:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf


This is the original FMLA notice:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fmlaen.pdf



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[1] The Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Expansion") both part of the Families First Coronavirus Response Act (FFCRA).



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