In response to the unprecedented public health crisis arising from the Novel Coronavirus outbreak, and to address the needs of workers who take sick leave in response to the outbreak, the federal government included important sick leave expansions within the Families First Coronavirus Response Act (the “Act”), which was passed into law on March 18, 2020. The Act will become effective on or about April 2, 2020 and contains important protections that all employees should be aware of.
Paid Sick Leave Mandate
The Act mandates paid sick time to an employee for the following reasons:
- To self-isolate after diagnosis of COVID-19,
- To get a medical diagnosis when showing COVID-19 symptoms,
- To comply with an official order to quarantine,
- To care for a family member who has been diagnosed with COVID-19; or
- To care for school age children who do not have day-care because of school closure.
Extent of Paid Sick Time
The Act grants 80 hours of paid sick time to full-time employees required to take sick leave for one of the above-mentioned reasons. Part-time employees are entitled to paid sick time equivalent to the average number of hours worked in a 2-week period.
Paid Sick Time Termination
An employee that exercises the right to take paid sick time will receive pay until the time of the next scheduled shift after the need to take sick time has terminated. This means that although 2 full weeks of pay is available, this can be limited by circumstances. For example, where an employee takes sick leave to care for a school age child, and school resumes prior to the end of the two week period, the employee’s entitlement to sick leave pay would end at the beginning of the next shift scheduled after school goes back in session.
Relation of Paid Sick Time to Other Benefits
The expansion of paid sick time in the Act is in addition to other employer granted sick time benefits. For example, if an employee earns paid sick time as part of their regular compensation package, the paid sick time granted by the Act is in addition to the paid sick time available under the benefits already granted by their employer.
The expansion of paid sick time is designed to act in tandem with the first 2-week period of the Family and Medical Leave Act (“FMLA”) expansion within the Act. The FMLA expansion provides for up to 12 weeks of paid leave to a qualifying employee but does not provide pay for the first 2-week period. The paid sick time expansion within the Act bridges that gap.
An employer cannot require an employee to use the sick time, or other benefits they have accrued as part of their normal compensation prior to use of the paid sick time made available by the Act. An employer cannot require an employee to find their replacement, or to have their shifts covered if they exercise their right to paid sick time under the Act. An employer cannot deny an employee the right to take this sick time, if the employee qualifies for it, regardless of the length of the employee’s service with the employer – there is no vesting period. An employer is prohibited from retaliating against an employee for exercising the right to paid sick time under the Act.
If an employer engages in any prohibited act set forth above, they are subject to various forms of liability, depending on the nature of the violation. If the employer requires the employee to use sick time benefits already accrued as part of normal instead of paid sick time under the Act, refuses to grant paid sick time to a qualifying employee, requires the employee to get shifts covered or find a replacement, or otherwise interferes with the employee’s rights under the Act, they are liable for unpaid wages, plus liquidated damages in the amount of the unpaid wages, plus attorney fees and costs. If the employer retaliates against the employee for exercising rights under the Act, the employee may, in addition to the remedies described above, be entitled to reinstatement or promotion.
The current public health crisis caused by the Coronavirus outbreak is unprecedented. Congress has passed emergency measures designed specifically to help workers affected by the outbreak. It is especially important that employees learn the new rules and be mindful of the fact that public health and safety is the national priority. As is always the case, there are some employers who, for whatever reason, will not follow rules designed for the collective good. Employees must assert their rights when dealing with non-compliant employers for the health and safety of all.