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Top 3 Questions Asked by Employers about COVID19 Paid Sick Leave

1) Does the Families First Care Response Act Apply to me? The expanded family and medical leave provisions of the FFCRA applies to certain public employers, and private employers with fewer than 500 employees.The 500 employees also counts part-time employees.

a. Small businesses: Certain small businesses (fewer than 50) may exempt employees if the leave would jeopardize the company’s viability as a going concern.

b. Employers of healthcare providers: Employers of health care provider or emergency responders are not required to pay sick leave or expanded family and medical leave. See item 2 below.

c. Federal Employees: Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision. 

d. Closed workplaces: If an employer closes its worksite for lack of work or because it was required to close pursuant to a Federal, State or local directive they are not required to pay sick leave. See Questions 23-25 of DOL guidance.

2) Can employers of healthcare providers be excluded by their employer from paid sick leave and/or expanded family and medical leave?

Yes. An employer of healthcare provider is exempt from providing an employee the paid sick leave pursuant to the FFCRA. Department of Labor defined healthcare providers as "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." See Questions 56-57 of DOL guidance.

An employer of a healthcare provider can make case-by-case decision by the job category in determining if they will provide paid sick leave under the FFCRA to their covered employees. It is critical to look at the job classification and how it is driven by the business' needs. It is also critical to separate the reason for the leave. For instance, an employer should probably allow a covered employee to take paid leave if the employee or an immediate family member is exposed to COVID19.

3) How much do covered employees have to pay?

If an employee takes sick leave due to his or her own quarantine or symptoms, 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 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. The additional 10 weeks of expanded family & medical paid leave applies to employees who have worked for the employer for at least 30 calendar 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.

It is critical to keep in mind, that eligible Employers are entitled to receive a credit in the full amount of the qualified sick leave wages and qualified family leave wages, plus allocable qualified health plan expenses and the employer’s share of Medicare tax, paid for leave during the period beginning April 1, 2020, and ending December 31, 2020. See the IRS website on what documentation is needed for employers to receive the credit.

Also beware that your local City or County may have expended this requirement. For more visit our page on the FFCRA On April 7, 2020, the San Francisco Board of Supervisors passed an emergency ordinance that expanded the paid sick leave to cover private employers with 500 or more employees.

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.


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