Starnes Davis Florie



March 16, 2020

As the rest of the country attempts to figure out how exactly this pandemic will impact daily life – from going to work to grocery stores to doctors’ appointments, the House of Representatives passed a bill providing for various relief, including paid sick leave, paid family and medical leave, enhanced unemployment benefits, and Covid-19 testing.  The expectation is that the Senate will pass it and the President will sign it into law this week.  It will go into effect no later than 15 days after it becomes law.

As written, the law applies to employers with less than 500 employees and government agencies; however, it is not known whether different legislation is planned for larger employers at this time.


All employees of covered employers, regardless of service time, are eligible for leave under the Emergency Paid Sick Leave Act.  The Act provides full-time employees 80 hours of paid sick leave at their regular rate of pay.  Part-time employees are provided the number of hours of paid sick time equal to the number of hours the employee works, on average, over a 2-week period.

Leave is available for employees to

  1. Self-isolate because they have been diagnosed with coronavirus;
  2. To receive a diagnosis or care if they are experiencing symptoms of coronavirus;
  3. To comply with a recommendation or order of a public official or health care provider because the employee’s physical presence at work would jeopardize health of others because of
    • exposure of employee to coronavirus; or
    • exhibition of symptoms or coronavirus
  4. To care for a family member who has been diagnosed with or is experiencing symptoms of coronavirus (including family members who have been ordered to self-isolate); and/or
  5. To care for a child whose school or childcare has closed or is unavailable due to coronavirus.

Leave under this Act is in addition to sick leave already provided by the employer.  Employees may take leave under this Act and then utilize available paid time off already provided by an employer policy.  Employers may not reduce their leave policies in response to this law.

Employers are required to post a notice regarding this law, which will be published by the Department of Labor following the passage of this law.


The Emergency Family and Medical Leave Act amends the FMLA to provide for paid Public Health Emergency Leave.  Unlike the Emergency Sick Leave Act, employees must have been employed at least 30 days to be eligible.  The law provides for 12 weeks of job protected leave for the following reasons:

  1. To comply with a recommendation or order by a public official or a healthcare provider on the basis that the physical presence of an employee on the job would jeopardize the health of others because of
    • exposure of employee to coronavirus; or
    • exhibition of symptoms of coronavirus; and

The employee is unable to both perform their job and comply with the recommendation or order. (In other words, employees who are unable to work remotely.)

  1. To care for a family member with respect to whom a public official or a health care provider decides that the presence of the family member in the community would jeopardize the health of other individuals in the community because of
    • exposure of employee to coronavirus; or
    • exhibition of symptoms or coronavirus.
  2. To care for a son or daughter under 18 if school or childcare provider is closed due to the public health emergency.

The first 14 days are unpaid; however, an employee may utilize sick leave under the Emergency Sick Leave Act during this period.  In addition, while an employee may choose to use accrued paid time off to cover the leave, he/she cannot be required to do so. After 14 days, leave is paid at 2/3 of the employee’s regular rate of pay. If an employee works a varied schedule, then pay is based on the average daily hours over 6 months.

Employees are entitled to be returned to their job following the leave.  Employers of 25 employees or less may not have to restore an employee to their same position if it no longer exists due the public health emergency and the employer makes reasonable efforts to restore the employee to an equivalent position for a year after leave. Employers will be provided tax credits to help pay for these benefits.

One question we anticipate is whether this law applies to provide benefits to employees who are laid off due to the public health emergency.  For example, day cares, fitness facilities, libraries, and other organizations that provide places for people to socialize and interact may shut down to help slow the spread of the virus.  Other businesses may be forced to halt or greatly reduce operations for economic reasons where customers have temporarily changed their habits, such as in the travel and hospitality industry.  We do not think this law would apply in such situations.  It is intended to provide benefits to employees based on individual circumstances.  If employees lose their jobs in this crisis, unemployment benefits are the best option.

There will be many other questions about this law as employers apply it to their employees.  Regulations are expected to help answer questions.  We will do our best to help you prepare for this law’s quick and necessary implementation.

We will continue to update you as the Senate and President consider this bill to let you know of any changes and/or effective dates. In the meantime, as always, we will be available to answer your questions as you navigate these uncertain times.

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