Yes, an employer with between fifty and five hundred employees may be required to provide up to two weeks of paid sick leave to quarantined employees and up to twelve weeks of paid leave to employees caring for a child whose school or daycare was closed due to COVID-19 under the Families First Coronavirus Response Act (FFCRA).

The Families First Coronavirus Response Act (FFCRA) provides for two new types of paid leave related to COVID-19: two weeks of emergency paid sick leave under the new Emergency Paid Sick Leave Act, which may be followed by ten weeks of expanded family and medical leave under the FMLA expansion for qualifying employees, for a total of twelve weeks. Both types of leave are effective April 1 and expire on December 31, 2020. There are different eligibility requirements for each type of leave, so some employees may qualify for one and not the other.

Note that the amount of paid leave could be an employee’s full salary or two-thirds of an employee’s salary, depending on the type of leave and reason for taking leave. We recommend reviewing each law to determine exactly how much you are obligated to pay an employee taking either or both types of leave.

Emergency Paid Sick Leave Act (emergency paid sick leave)

Employees may be eligible for two weeks of emergency paid sick leave under the new Emergency Paid Sick Leave Act if they are unable to work (or telework) due to one of six specified reasons related to the COVID-19 pandemic. Those reasons include being subject to a federal, state, or local quarantine order, being advised by a health care provider to self-quarantine, and caring for a son or daughter whose school or daycare is closed due to COVID-19. Emergency paid sick leave is available to employees regardless of how long they have been employed.

An employer cannot require an employee to use employer-provided PTO before they can use emergency paid sick leave. However, an employee can choose to use their employer-provided PTO or sick time if they wish to.

Emergency Family and Medical Leave Expansion Act (expanded family and medical leave)

Employees may be eligible for an additional ten weeks of paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act if they are unable to work (or telework) when caring for a child under the age of eighteen whose school or daycare was closed or whose childcare provider is unavailable due to COVID-19. Expanded family and medical leave is available only to employees who have been employed for at least thirty days.

Under the Emergency Family and Medical Leave Expansion Act, employers with five hundred or fewer employees are required to provide family and medical leave to qualifying employees of up to twelve weeks if they are unable to work (or telework) due to a need to care for their son or daughter under the age of 18 whose school or daycare has been closed due to COVID–19.

The first two weeks of expanded family and medical leave are unpaid, and an employee may elect to use any accrued PTO or paid sick leave during that period, as well as the emergency paid sick leave discussed above.

Small Business Exemption

Employers with fewer than fifty employees may be exempt from providing emergency paid sick leave and expanded family and medical leave when “the imposition of such requirements would jeopardize the viability of the business as a going concern.” The Department of Labor has issued temporary regulations regarding how to make this determination and document it, and we have linked to those regulations in the resources below.

For resources related to our guidance, please see:

• Department of Labor, Families First Coronavirus Response Act: Employee Paid Leave Rights (“Generally, the Act provides that employees of covered employers are eligible for:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and

• Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.”)

• Emergency Paid Sick Leave Act, Sec. 5110(2)(B) (“In subparagraph (A)(i)(I), the term ‘covered employer’ (I) means any person engaged in commerce or in any industry or activity affecting commerce that (aa) in the case of a private entity or individual, employs fewer than 500 employees . . . .”)

• Emergency Paid Sick Leave Act, Sec. 5102(b)(2) (“The amount of hours of paid sick time to which an employee is entitled shall be as follows: (A) For full-time employees, 80 hours. (B) For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.”)

• Emergency Paid Sick Leave Act, Sec. 5102(a) (“An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

(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.

*     *     *     *     *

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

• Emergency Paid Sick Leave Act, Sec. 5110(5) (“The term ‘paid sick time’ means an increment of compensated leave that (i) is provided by an employer for use during an absence from employment for a reason described in any paragraph of section 2(a); and (ii) is calculated based on the employee’s required compensation under subparagraph (B) and the number of hours the employee would otherwise be normally scheduled to work (or the number of hours calculated under subparagraph (C)), except that in no event shall such paid sick time exceed (I) $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) of section 5102(a); and (II) $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) of section 5102(a).”)

• Emergency Paid Sick Leave Act, Sec. 5110(5)(A) (“(1) IN GENERAL. The paid sick time under subsection (a) shall be available for immediate use by the employee for the purposes described in such subsection, regardless of how long the employee has been employed by an employer. (2) SEQUENCING. (A) IN GENERAL. An employee may first use the paid sick time under subsection (a) for the purposes described in such subsection. (B) PROHIBITION. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under subsection (a).”)
                                  
• Family and Medical Leave Act, 29 USC 2612(a)(1) (“Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: . . . (F) During the period beginning on the date the Emergency Family and Medical Leave Expansion Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency in accordance with section 2620 of this title.”)

• Family and Medical Leave Act, 29 USC 2620(a)(1)(B) (“Section 2611(4)(A)(i) of this title shall be applied by substituting ‘fewer than 500 employees’ for ‘50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year’.”)

• Family and Medical Leave Act, 29 USC 2611(4)(A)(i) (“The term ‘employer’ — (i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year . . .”)

• Family and Medical Leave Act, 29 USC 2620(a)(2)(A) (“The term ‘qualifying need related to a public health emergency’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”)

• Family and Medical Leave Act, 29 USC 2620(a)(1)(A)(i) (“In lieu of the definition in sections 2611(2)(A) and 2611(2)(B)(ii) of this title, the term ‘eligible employee’ means an employee who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested under section 2612(a)(1)(F) of this title.”)

• Family and Medical Leave Act, 19 USC 2620(b) (“Relationship to paid leave.

(1) Unpaid leave for initial 10 days.

• (A) In general. The first 10 days for which an employee takes leave under section 2612(a)(1)(F) of this title may consist of unpaid leave.
• (B) Employee election. An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave under section 2612(a)(1)(F) of this title in accordance with section 2612(d)(2)(B) of this title.

(2) Paid leave for subsequent days.

• (A) In general. An employer shall provide paid leave for each day of leave under section 2612(a)(1)(F) of this title that an employee takes after taking leave under such section for 10 days.
•  (B) Calculation. (i) In general. Subject to clause (ii), paid leave under subparagraph (A) for an employee shall be calculated based on — (I) an amount that is not less than two-thirds of an employee’s regular rate of pay (as determined under section 207(e) of this title); and (II) the number of hours the employee would otherwise be normally scheduled to work (or the number of hours calculated under subparagraph (C)). (ii) Limitation. An employer shall not be required to pay more than $200 per day and $10,000 in the aggregate for each employee for paid leave under this section.”)

• Temporary Rule, Paid Leave Under the Families First Coronavirus Response Act, 88 Fed. Reg. 19326, 19352 (April 6, 2020)  (“An Employer . . . with fewer than 50 Employees (small business) is exempt from providing Paid Sick Leave under the EPSLA and Expanded Family and Medical Leave under the EFMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern. A small business under this section is entitled to this exemption if an authorized officer of the business has determined that:

(i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business's expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

(ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

(iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.”)

• Temporary Rule, Paid Leave Under the Families First Coronavirus Response Act, 88 Fed. Reg. 19326, 19326 (April 6, 2020) (“The Secretary of Labor (‘Secretary’) is promulgating temporary regulations to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (COVID-19) global pandemic. The leave is created by a time-limited statutory authority established under the Families First Coronavirus Response Act, Public Law 116-127 (FFCRA), and is set to expire on December 31, 2020. The FFCRA and this temporary rule do not affect the FMLA after December 31, 2020.”)