Federal Emergency Paid Sick Leave

Drew Lewis

Employment Law Attorney
Last Updated:

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.

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Article Contents:

Section #1: Which Employers are Required to Provide Paid Sick Leave?

Which Employers are Required to Provide Paid Sick Leave?

Most employers are required to provide paid sick leave to their employees under the new law. The list of employer subject to the law includes:
  • Private companies with 500 or fewer employees
  • Public entities and agencies (local, state and federal) with 1 or more employee
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:
  • Certain health care providers and emergency responders (but only with respect to specific types of roles, such as medical professionals and EMT personnel)
  • Small businesses with fewer than 50 employees under certain circumstances
Section #2: Which Employees are Entitled to Take Paid Sick Leave?

Which Employees are Entitled to Take Paid Sick Leave?

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:

  • Full-time employees
  • Part-time employees
  • Recently-hired employees
  • Undocumented immigrants
  • Military personnel
  • Civilians working in military departments
The law does not provide paid sick leave to everyone, however. The following types of workers are excluded from receiving paid sick leave rights:
  • Volunteers
  • Unpaid interns (who are properly classified as an intern)
  • Independent Contractors (who are properly classified as an independent contractor)
  • Church personnel
Section #3: What Reasons Qualify for Taking Paid Sick Leave?

What Reasons Qualify for Taking Paid Sick Leave?

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:
  • You are required by local, State or Federal order to self-quarantine or isolate (shelter in place) because of Coronavirus;
  • You have been advised by a health care provider to self-quarantine because of or related to Coronavirus.
  • You are experiencing Coronavirus symptoms;
  • You are 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;
  • You are caring for his or her child whose school is closed or child care provider is unavailable, because of Coronavirus;
  • You are experiencing any other conditions specified by the Secretary of Health and Human Services.
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.
Example:
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.

Reasons That do Not Qualify for Federal Paid Sick Leave

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:
  • You are experiencing a sickness or illness not related to Coronavirus;
  • You need to seek medical attention for a condition unrelated to the Coronavirus;
  • You need to care for a family member who is sick or seriously ill with a medical condition not related to the Coronavirus.
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.
Section #4: How to Request Paid Sick Leave

How to Request Paid Sick 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:
  • Requesting notice of the need for leave be provided as soon as practicable
  • Requesting the amount of anticipated sick leave be disclosed
  • Requesting the general reason (see above six) for which your leave is being requested
Tip:
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:
  • Requiring notice by a difficult or inconvenient manner (by mail, when an easier alternative is available)
  • Requiring you provide medical documentation supporting your claimed reason for leave
  • Requiring you to provide a replacement to cover your job as a condition of taking leave

Employers Cannot Require You to Use Paid Time Off or Other Sick Leave Before Using Federal Paid Sick Leave

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.
Tip:
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.

Employers Cannot Require You to Find A Replacement

Your employer cannot require you to find a replacement to cover the hours that you will miss as a condition of providing sick leave.

Taking Intermittent 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.

Multiple Parents Taking Leave and Child Care Pools

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.
Tip:
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.
Section #5: How Much Paid Sick Leave Time Are You Entitled To?

How Much Paid Sick Leave Time Are You Entitled To?

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.

Full-time employees

Full-time employees are entitled to 80 hours of paid sick time.

Part-time employees (fixed schedule)

Part-time employees are entitled to sick leave in the number of hours they work, on average, during a two-week period. The law is silent as to how far back employers should look back to find the average number.
Example:
Teresa works part-time and has a fixed schedule. She generally works 5 hours per day, four days per week (20 hours per week). Over the course of a two-week period, Teresa works on average 40 hours. She is therefore entitled to 40 hours of paid sick leave.

Part-time employees (variable schedule)

If you are a part-time employee with a schedule that varies from week to week in such a way that your employer would be unable to determine how much you would have worked during the two-week period, part-time employees with a variable schedule in such a way that the employer is not able to determine with certainty the number of hours you would have worked, your employer should use the following number:
  • The average number of hours you were scheduled to work per day over the 6-month period prior to taking your first day of sick leave;
  • If you did not work for six months prior to taking leave, your reasonable expectation of the number of hours you were going to work when you were first hired.
You should be aware that employees are not allowed to carry-over federal sick leave from year to year. Unless Congress reauthorizes the federal sick leave law, any unused sick time will expire on December 31, 2020.
Finally, the employer may not change its leave policy in order to avoid having to give you extra leave. Moreover, the leave policy in effect is the leave policy that your company had in place on March 17, 2020, the day before the Emergency Paid Sick Leave law was signed. However, what is unclear is whether or not your employer could change its policy for legitimate business reasons.
Section #6: How Much Does Federal Sick Leave Pay?

How Much Does Federal Sick Leave Pay?

Your employer is required to pay you the minimum wage, or your regular hourly rate, whichever is higher. For hourly employees this is straightforward. Your regular rate is the hourly rate your company pays you.
The Federal Paid Sick Leave law provides a cap on the amount your employer has to pay you when using your leave. The cap is determined based on the reason for which you are taking the leave.

Paid Sick Leave Amount for Shelter in Place and Coronavirus-Related Medical Issues

Your employer is only required to pay you a maximum amount of $511 per day or $5,110 in total, if you take sick leave for the following reasons:
  • You are required to self-quarantine or shelter in place according to a Federal, State or Local order related to Coronavirus;
  • Your health care provider has recommended you self-quarantine due to the Coronavirus;
  • You are experiencing symptoms of the Coronavirus and are in the process of getting a diagnosis.
As a result, employees making more than $63.88 an hour who take leave for these reasons will be capped in how much they can receive in paid sick leave.

Paid Sick Leave Amount for School Closures and Child Care Issues

Your employer is required to pay you even less, a maximum amount of $200 per day or a total of $2,000 in total, if you take leave for reasons not related to a personal medical issue with the Coronavirus. Those reasons include:
  • You are caring for someone who is subject to a shelter in place order, or who has been advised by a health care provider to self-quarantine;
  • You are caring for a child whose school has closed or whose childcare provider is unavailable due to Coronavirus;
  • You are experiencing other health conditions similar to Coronavirus.
Additionally, if you take leave for one of the three reasons listed above, your employer is only required to pay you 2/3 of your regular hourly rate up to a maximum of $200 per day. The chart below shows you how much sick leave you will be paid based on your hourly rate.
Hourly Rate2/3 of Hourly RateFull-Day Sick Leave Pay (8 hours)
$12.00 per hour$8.04$64.32
$13.00 per hour$8.71$69.68
$15.00 per hour$10.05$80.40
$20.00 per hour$13.40$107.20
$25.00 per hour$16.75$134.00
$30.00 per hour$20.10$160.80
$35.00 per hour$23.45$187.60
$40.00 per hour$26.80$200.00

Special Pay Rates for Certain Types of Employees

For certain types of employees, the regular rate at which paid sick leave should be paid is calculated under Federal law and not California law. This group of employees includes:
  • Salaried, non-exempt employees
  • Employees who receive bonuses
  • Commissioned sales employees
The rules for determining the appropriate pay rate for these types of employees can be complicated and involve complex calculations. It is recommended that you contact an experienced employment attorney that understands wage and hour laws to help you figure out how much you should be paid.

Cities and Counties with Higher Local Minimum Wage

The California minimum wage in 2020 is $12.00 an hour for businesses with 25 employees or less. Businesses with more than 25 employees have to pay $13.00 an hour. Some cities and counties have enacted higher local minimum wages which apply to all businesses that are located or do business in their city or county. These are the rates that the sick leave law requires be paid to employees if the rate is higher than the state minimum wage.
AlbanyMarin (county)San Leandro
AnaheimOaklandSan Mateo (county)
BerkeleyOxnardSanta Barbara
DavisPasadenaSanta Clara (county)
EmeryvillePetalumaSanta Cruz
FairfaxRichmondSanta Monica
HaywardSacramentoSonoma (county)
IrvineSan DiegoVentura
Long BeachSan FranciscoWest Hollywood
Los Angeles (county)San Jose
Section #7: Penalties for Violating Federal Sick Leave Rights

Penalties for Violating Federal Sick Leave Rights

If your employer refused to let you exercise your sick leave rights by taking paid sick leave, the consequences can be steep. The law treats their refusal by the same as not paying you your wages for the day.
When your employer refuses to pay sick leave, you are not only entitled to the value of the leave, but also to penalties. You can recover penalties in the same amount of the minimum wages that are owed to you. Additionally, because you might be required to hire an attorney, the law will make your employer pay for your attorney’s fees and the costs of a lawsuit if you win.
Additionally, your employer could be responsible for a fine of up to $10,000 and six months in jail. If your employer is a repeat offender, it could face growing fines of $1,100 for each subsequent violation.
Section #8: Protections Against Retaliation and Discrimination for Using Your Paid Sick Leave Rights

Protections Against Retaliation and Discrimination for Using Your Paid Sick Leave Rights

Employees who exercise their federal sick leave rights are engaging in “protected activity.” That means your employer cannot discriminate or retaliate against you because you took certain lawful action. You are protected when you:
  • Request to use your federal sick leave rights;
  • Complain about an employer’s illegal sick leave policies or practices;
  • File a formal or informal complaint about the employer’s illegal sick leave practices;
  • Discuss the employer’s illegal sick leave practices with other employees in an effort to enforce, protect, or promote your rights;
  • Report the employer’s illegal sick leave practices to a government agency to investigate.

Motivation for Retaliation

Motivations for employer retaliation vary widely. But they usually stem from some act you did that negatively impacted a supervisor, other employees or the business.
For example, because your employer generally cannot deny or postpone your request to take leave, if you exercise your paid sick leave rights in the middle of an important project, your supervisor may become resentful of the additional work that he or she needs to do to complete the project—the work that was yours. This is especially the case when the project is time sensitive.
Your request for leave could have a domino effect, spurring other employees to exercise their leave. This is especially true in cities where shelter in place orders allow employees to qualify for federal paid sick leave immediately. Employees taking leave at the same time could significantly disrupt business operations and effectively halt the company’s ability to provide goods or services without significant expense.

Common Forms of Retaliation and Discrimination

Retaliation and discrimination come in different shapes and sizes. Some actions take place over many years while others happen almost days or hours. Like motives, the objectives of retaliation and discrimination vary. Some employers simply want to punish employees. Others want employees to leave voluntarily by making the work environment so intolerable that no person would want to stay. Whatever the objective, there are common forms of retaliation and discrimination that you should watch for:
  • Demotion
  • Suspension
  • Discipline
  • Unwarranted Performance improvement Plans
  • Reduction in pay
  • Reduction in hours
  • Reduction in responsibilities
  • Reassignment to lesser/worse position
  • Termination/Firing
Additionally, there are some specific forms of retaliation that you want to be especially aware of as it relates to the Coronavirus. Many employers are firing workers due to business slowdowns. It is possible that when things begin to return to normal, you will have an opportunity to be rehired. If the company does not hire you, but instead hires someone that is less senior, less qualified or otherwise not a good fit for the position, you could be the victim of retaliation.
Another example of discrimination that employees may face relates to the potential stigma of being infected and the perceived danger that you may pose in the workplace. Very little is known about Coronavirus. That unknown may create fear that causes an employer to pass over you in a discriminatory way if they are aware you had Coronavirus.

Proving Retaliation or Discrimination

Many employees are concerned that they will not be able to prove retaliation or discrimination unless they have a “smoking gun” – in their mind a document or recording where someone form the company admits that they engaged in unlawful conduct. That is not so though. An experienced attorney will be able to explain to you why you do not need “smoking gun” evidence and how some of the cases with the largest verdict had no smoking gun evidence.
There are numerous ways, without direct evidence, to prove that you experienced retaliation or discrimination. Consider the following questions in light of what you have experienced at work:
  • Did your employer take some type of negative employment action (suspension, performance improvement plan, suspension) against you close to the time when you engaged in the protected activity?
  • Did you have good performance reviews prior to exercising your rights, but now you are receiving unwarranted criticism?
  • Have you been excluded from meetings and events that you used to be included in?
  • Are your supervisors refusing to give you work/good work despite your requests for such work?
  • Have your coworkers (including supervisors or other company management) suggested you find a new job in the company or at a different company?
  • Have coworkers or supervisors cautioned you from “rocking the boat” or raised concerns that you should not be engaged in a specific type of protected activity?
This is not an exhaustive list, but they are common ways to think about how to evaluate and prove whether you are experiencing retaliation or discrimination.
Section #9: Enforcing Your Paid Sick Leave Rights and Recovering What you Are Owed

Enforcing Your Paid Sick Leave Rights and Recovering What you Are Owed

If your employer refuses to provide you with your paid sick leave, or has retaliated or discriminated against you, you may have to take steps to force the company to comply with the law.
One option to resolve your employer’s violations is to call the Department of Labor. The Department of Labor may do an investigation and issue a citation. However, keep in mind that the Department of Labor is a federal agency that serves workers in all 50 states. There ability to meaningfully help you may be limited.
You might also be able to hire an attorney to help you. An employment attorney that is experienced in discrimination and retaliation will be able help you identify the best course of action. This might include filing a lawsuit against the company to help you recover your damages.
In addition to the penalties discussed above, if you have experienced discrimination and retaliation you may be entitled to recover back wages, emotional distress and punitive damages.
However, because these types of cases can require a certain level of expertise, it is best that you consult with an attorney that is experienced in resolving discrimination, retaliation, harassment and unpaid wages and sick leave.

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