Matt Crumpton, Esq.
What The New Emergency Coronavirus Paid Sick Leave Law Means For Employers
On Friday, March 13, Congress passed H.R. 6201 calling it the Families First Coronavirus Response Act.
The bill covers several areas, including free coronavirus testing, providing funds to sure up state unemployment insurance and additional funding for Supplemental Nutrition Program (SNAP) and Women, Infants and Children (WIC) food programs.
However, the biggest impact to restaurants, bars, and other small employers are the new paid sick leave and emergency sick leave provisions. This is the most significant federal legislation to require small employers to take action since the Affordable Care Act.
Here are the highlights of the paid sick leave provision as they exist on March 16, having passed the House and awaiting a vote in the Senate (with President Trump’s pre-approval). These provisions apply to all employers with less than 500 employees:
Paid Sick Leave Permitted Uses. Section 103(b)
Physical or mental illness or injury or medical condition
Absence due to medical care
Absence resulting from closure of place of business due to public health crisis declared by the State or Federal government or closed by the employer at the employer's discretion
Absence due to quarantine (ordered by doctor or government) due to public health crisis
Absence due to caring for a child whose school or daycare is closed due to coronavirus.
Absence due to domestic violence, sexual assault, or stalking.
Non-Coronavirus Paid Sick Leave Provision.
Employers MUST provide one hour of paid sick leave for every thirty hours worked by the employee, up to a maximum of fifty-six hours per year. Section 103(a)(1).
The amount of Non-Coronavirus Paid Sick Leavefor each employee begins to accrue from the employee’s first day (even if it was before the law was signed). Section 103(a)(3)(A).
Coronavirus Reimbursable* 14 Day Paid Sick Leave Provision.
When a public health emergency is declared, Employers MUST provide fourteen days of paid leave for full time employees and a fourteen day equivalent of paid leave for part time employees. Section 103(c)(2).
Employers are not permitted to request a doctors note for a public health emergency. Section 103(d)(2)(C).
The fourteen days of coronavirus paid sick leave is reimbursable by the federal government for employers of fifty or fewer employees. Section 103(c)(6). The employer sends in an affidavit and proof of payment to the Secretary of Labor who is required to direct the Treasury to “provide timely reimbursement.” Section 103(c)(6)(C).
All employers must post a very specific Paid Sick Leave notice to employees or face a $100 “per instance” fine. Section 104.
There is a private right of action for individuals to pursue claims against employers who fail to pay, with attorneys fees rewarded. Section 106(a).
Not A Short Term Law
Despite media reports, this law is not for 2020 only. Section 113 provides “There are authorized to be appropriated to carry out this Act such sums as may be necessary for fiscal year 2020 and each subsequent fiscal year.”
Yes, that is a lot of to take in at once.
What jumps out at me is 1) the new, super low-key, paid leave law that does not expire at the end of the year, 2) the private cause of action, and 3) most notably, the 14 days of Cornavirus sick leave.
Many employers already offered some form of paid sick leave or paid leave that is a combination of sick leave and vacation. Now, there is a federal minimum for paid sick leave of one hour for every thirty hours an employee works. Every employer wants to be able to afford as much sick leave as possible. Now, we have a specific number and formula that all businesses are required to calculate and execute – or face fines and litigation.
The immediate focus is on the Fourteen day Coronavirus paid sick leave. In Ohio, the public health emergency has already been declared to close schools, restaurants (dine in) and bars. Yes, it is a huge relief that the federal government is going to reimburse businesses with less than fifty employees. Still, the businesses are going to have to front the money.
How many businesses will be able to make these rather large payments at the same time that they are drained of cash flow due to the complete shut down of the US economy? That’s the question.
If you own a business, these are the calculations that you need to get ready to do:
Calculate how many days of Non-Coronavirus paid sick leave you owe each respective employee. To get that number, divide the total hours worked by the employee since they started by 30. (The max is 56 hours at a time.)
Calculate what you owe each employee in the event of Coronavirus Paid Sick Leave. To get that number, multiply the average hours the employee works each week times two weeks. This amount is reimbursable.
Stay tuned for a final assessment of the bill after the Senate has approved it. Given President Trump’s signaling of approval, I expect this bill to not have too many changes.
Hang in there, friends. We are all in this together.