On March 18, 2020, President Trump signed into law the Emergency Paid Sick Leave Act granting paid sick leave rights to all workers in the United States. The law was written to address many of the gaps in existing state and federal laws that provided workers with the right to take leave when sick, but not when they needed to leave work to prevent sickness or when a child’s school closed.
This article provides a comprehensive guide to the new Federal Emergency Paid Sick Leave Act (which is scheduled to go into effect by April 3, 2020) in a way that will allow workers who are not attorneys understand their sick leave rights and the impact the new law will have at their job. This article also provides numerous practical tips and examples so that you can exercise your federal sick leave rights.
Find this information useful? Share it using the links below: Share on facebook Share on twitter Share on linkedin Share on redditMost employers are required to provide paid sick leave to their employees under the new law. The list of employer subject to the law includes:
Additionally, the law provides that the Secretary of Labor may (at a future date) exempt the following employers from providing sick leave to some or all of their employees:
All eligible employees throughout the United States are entitled to take the full amount of paid sick leave immediately. This varies from other law, including California’s Paid Sick Leave law which requires sick leave to be accrued over time. The list of employees entitled to paid sick leave rights includes:
The law does not provide paid sick leave to everyone, however. The following types of workers are excluded from receiving paid sick leave rights:
Your employer must provide you with the opportunity to take paid sick leave if you have a qualified reason. The law provides six reasons for which you can take sick leave:
There is one broad exception that impacts each of these qualifying reasons. If any of the qualifying reasons do not actually prevent you from working, or working remotely, you might only be entitled to take partial leave.
Jim is not required to shelter in place. But the high school where his two children attend was recently closed. Even though his children’s school closed, because they are able to take care of themselves, he may not be entitled to leave under the law. If his children are younger and unable to drive, the employer may be required to allow Jim to work from home if it would be a safety issue for his kids to remain at home without transportation.
While there are many reasons that qualify to take paid sick leave, there are reasons that would not qualify for taking paid sick leave. Among these reasons are:
It is important to understand that even though these types of situations may not be qualifying reasons under the Federal Paid Sick Leave Act, there are other laws that might provide you with protected leave and/or wage replacement. These laws include the California Paid Sick Leave law, California Family Rights Act, the California Fair Employment and Housing Act, Federal Medical and Family Leave Act and California Paid Family Leave.
You are not required to follow any strict requirements with respect to giving notice to your employer in order to exercise your paid sick leave rights. The employer is allowed to develop reasonable notice procedures which you will need to follow. The law does not say what type of procedures are or are not reasonable. But based on other existing leave laws, the following notice requirements are likely reasonable:
Most leave laws require you to provide minimal, if any, medical information to your employer. If you request leave under the Federal Paid Sick Leave law, your employer might require you to disclose that you have either been diagnosed with or are experiencing symptoms of Coronavirus. This is necessary because in order to calculate the proper amount to pay you for your leave (as discussed here). You are not required to disclose any more than the law requires to use your sick leave. If you experience discrimination or retaliation after you disclose this limited but personal and private medical information, you are likely protected by a number of state and federal laws (discussed here)
Examples of employer-mandated notice requirements that are likely unreasonable include:If your employer provides you with other types of paid leave such as paid time off, vacation, or you have California Paid Sick Leave, your employer is not allowed to make you use that leave before using your Federal paid sick leave.
Many employers have their own leave policies that provide vacation or paid time off. Some policies are more generous than that provided by the Federal paid sick leave. Additionally, in California, all eligible employees are entitled to California Paid Sick Leave. If your employer has a leave policy (which many do), you need to review it to see what your company provides.
Why would an employer require you to use paid time off, vacation pay or sick leave provided under state or local law? In many states, including California, the law requires an employer to carry-over unused paid time off, vacation and sick leave to the next year when you do not use all of it during the year.
In California “use-it-or-lose-it” policies that require you to forfeit unused paid time off and vacation are illegal. Instead, employers who have put no cap on the number of paid time off, vacation pay or sick leave hours that you can accrue, are required to carry-over all time from year to year. Accrual caps, or paid time off, vacation and sick leave that state once a certain number of hours have been accrued no further hours can be earned (unless and until they are used) are acceptable.
The hours provided to you under the federal paid sick leave law are in addition to California Paid Sick Leave and any paid time or vacation provided by your employer. Federal paid sick leave does not carry over from year to year and the benefit is set to expire at the end of 2020. For this reason, the best way to stagger the use of multiple forms of leave is by utilizing your federal paid sick leave first and then using your California paid sick leave and then your paid time off or vacation.
Your employer cannot require you to find a replacement to cover the hours that you will miss as a condition of providing sick leave.
While many workers who are subject to shelter in place orders and who cannot work remotely will likely use their paid sick leave immediately, nothing in the law requires that you do so. If you wish to, you can wait to use your sick leave until a later time.
If you do decide to take leave, you are not required to use all the hours at one time. You can use your hours intermittently or in chunks of time, such as 4 hours on one day and two days the following week. This type of arrangement is most likely to occur where employees are able to work remotely and do not need the full two weeks immediately to replace income from being self-quarantined without the ability to work.
In households where two parents are taking care of the children, both parents are separately entitled to paid sick leave. This is so even if they work for the same employer. However, if the one parent is taking sick leave is because he or she needs to watch the kids whose school closed down or because of the unavailability of a child care provider, it is unlikely that both parents will be entitled to take leave at the same time. If one parent is watching the children, there is generally not a need for the other parent to watch the children.
You should be aware that qualifying reason number 4 (caring for an individual that is subject to a self-quarantine or shelter in place order, or who has been advised by a health care adviser to self-quarantine) does not require the person for whom you are providing care to be a family member. It also does not describe the type or level of care you are required to provide to qualify. It just requires that the person for whom you are providing care be subject to a shelter in place order or be advised by a health care profession to self-quarantine. Many shelter in place orders apply to all individuals, including children. For this reason, parents who are still able to work, but do not have child care, could create a child care pool with other parents who trade off watching each other’s children while the other parents in the pool work. This will allow parents to extend child care in light of the uncertainty of how long these conditions will last.
All eligible employees are entitled to take the full amount of paid sick leave immediately. There are no waiting periods and there are not required hours of service before you get to exercise sick leave. How much sick leave time you are entitled to does, however, depends on whether you are full-time or part-time.
