As a result of the pandemic and its results, on March 18, President Trump signed legislation providing for federally mandated paid sick leave to be paid by private employers through the end of 2020.

What employers are covered?

We will only be addressing private employers in this article. If you are a private employer engaged in commerce or any industry or activity affecting commerce and employing fewer than 500 employees, you are covered.

Employers with multi-employer collective bargaining agreements should consult legal counsel for specific guidance.

What employees are covered?

Each of your employees. There is no waiting period or minimum service required.

Note: The law provides that employees who are health care providers or emergency responders may be excluded.

What is required? How much paid sick time?

A covered employer must provide paid sick time to its employees to be used if the employee cannot work (or telework).

Full time employees are entitled to 80 hours.

Part time employees are entitled to the number of hours they work, on average, in a two-week period. If the hours vary to such an extent that you cannot determine with certainty the number of hours worked, the employer can determine the average number of hours the employee worked over the six months preceding the first day of the leave or, if the employee has not been employed for six months, use the average number of hours the employee would ordinarily be scheduled to work in a two week period.

Employees must be compensated for “paid sick time” at their regular rate of pay; except that, if an employee is out for reasons described in paragraphs (4) through (6) below they shall be paid at 2/3 of their regular rate of pay.

There are also caps on the paid sick time.

• In no event shall any person be paid more than $511.00 per day (or $5,110.00 in the aggregate) for circumstances (1) through (3) described below.
• In no event shall any person be paid more than $200.00 per day (or $2,000.00 in the aggregate) for the circumstances (4) through (6) below.

Under what circumstances can an employee use the paid sick time?

The law lists the following:

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 described in paragraph (1) or has been advised as described in paragraph (2);

5) The employee is caring for a son or daughter of such employee if the school or place of care for the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or

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 Treasury and the Secretary of Labor [Note: This will be very difficult to interpret].

An employer may not require an employee to use any other form of paid leave before using COVID-19 paid sick time if the leave is for one of these reasons.

What must covered employers do (and not do) now?

The law requires you post a notice of this new law. The law has directed the Secretary of Labor to create a poster for this purpose within the next seven days, and we will alert you when it is ready to be downloaded.

The law prohibits employers from discriminating against, or discharging, employees who take leave or exercise rights in accordance with this new law. Violating this law can result in actions against employers by the government as well as private lawsuits by aggrieved employees.

Will more changes come?

Yes. If there is anything of which we can be sure, it is that more changes will come. The law contemplates that the Department of Labor will issue regulations further interpreting the law. We cannot predict what they might say. One topic which was hotly debated was an exclusion for small businesses (those with fewer than 50 employees). The Department of Labor may provide an exemption for small business but, until it does, this is the law. As things evolve, we will endeavor to keep you informed.

By Kristen L. Brightmire and Rebecca D. Bullard
kbrightmire@dsda.com and rbullard@dsda.com