This post was updated on 6/2/2020.
In light of the federal Families First Coronavirus Response Act, which will go into effect on April 1, 2020, companies should consider implementing a new paid sick leave policy. Below, for reference only, is a sample policy to consider. Any new paid sick leave policy should be tailored to each particular workplace, and this policy is not intended to serve as, or to replace, legal advice on this important subject.
SAMPLE Emergency Paid Sick Leave Under the Families First Coronavirus Response Act Policy:
In light of the COVID-19 epidemic, the recently-implemented federal Families First Coronavirus Response Act (“FFCRA”), and our Company’s commitment to the safety and well-being of its employees and other members of the community, the Company has adopted this temporary Emergency Paid Sick Leave (“EPSL”) Policy (the “Policy”). Under the Policy, employees may take a paid leave of absence, up to a maximum of two weeks of paid sick leave in addition to other paid leave provided by the Company to the employee, subject to the terms and conditions outlined below.
A. Eligibility: All employees are eligible for EPSL between April 1, 2020 and December 31, 2020. Employees who work 40 or more hours per week are eligible for 80 hours of EPSL. Employees who work fewer than 40 hours per week are entitled to a pro-rated amount of EPSL based on the average number of hours the employee works during a two-week period (e.g., if a part-time employee works 48 hours during a normal two-week period, they will be eligible for up to 48 hours of EPSL).
For an employee whose schedule varies from week to week to such an extent that the Company is unable to determine with certainty the number of hours the employee would have worked if the employee had not taken EPSL, the employee’s EPSL entitlement will be based on the average number of hours the employee worked, including hours taken for leave, over a two week period (defined as fourteen calendar days) during the six-month period ending on the date on which the employee takes EPSL. Alternatively, if the employee has not worked for the Company for a full six months prior to taking EPSL, the employee shall receive an amount of EPSL equivalent to 2 times the expected number of hours that the employee and the Company agreed at the time of hiring that the employee would work each work week (or 14 times the expected number of hours that the employee and the Company agreed at the time of hiring that the employee would work each work day), or in the absence of such an agreement, an amount equal to fourteen times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.
EPSL to which an employee is entitled under this Policy is in addition to any other paid leave to which the employee is entitled under the Company’s policies or applicable state law. An employee will not be required to exhaust any other paid leave to which the employee is entitled under applicable state law or Company policy before using EPSL.
B. Reasons for Emergency Paid Sick Leave: An employee may use this EPSL if the employee is unable to work or telework because:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health-care provider to self-quarantine because of COVID-19 concerns;
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or who has been advised by a health provider to self-quarantine due to concerns related to COVID-19;
- “Individual” means an immediate family member, roommate or similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined. Additionally, the individual being cared for must: a) be subject to a federal, state or local quarantine or isolation order as described above; or b) have been advised by a health care provider to self-quarantine based on a belief that he or she has COVID-19, may have COVID-19 or is particularly vulnerable to COVID-19.
- The employee is caring for the employee’s child because the child’s school or place of childcare has been closed, or the child’s child care provider is unavailable, due to COVID-19 precautions;
- “Child” means a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age, or 18 or older and incapable of self-care because of a mental or physical disability.
- The employee is experiencing any other substantially similar condition as may be specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor.*
C. Calculation of Rate of Pay During EPSL: Employees will receive their full pay (not to exceed $511 per day and $5,110 in the aggregate) during any period of EPSL that is taken for a use described in Paragraph 1, 2, or 3 of Section B of this Policy. Employees will receive 2/3 of their regular rate of pay (not to exceed $200 per day and $2,000 in the aggregate) during any period of EPSL that is taken for a use described in Paragraph 4, 5, or 6 of Section B of this Policy. Employees may be eligible for additional leave for reasons under Paragraph 5 of Section B under the Families First Coronavirus Response Act emergency expanded family and medical leave. Employees should review to the Emergency Family and Medical Leave Act Expansion Policy for more information regarding Expanded Family and Medical Leave.
D. Increments and Intermittent Use of EPSL: When teleworking, employees may take EPSL intermittently or on a reduced schedule basis if the Company agrees. The Company will be flexible in scheduling EPSL on an intermittent or reduced schedule basis whenever possible.
If an employee is unable to telework, the employee may only take intermittent leave for reason 5 in Section B above, to care for the employee’s child when the school or place of care is closed, or the childcare provider is unavailable due to COVID-19-related reasons. As all other reasons for EPSL could potentially expose others in the workplace to COVID-19, employees are required to continue to take EPSL each day until the employee either uses the full amount of EPSL or no longer has a qualifying reason for taking EPSL.
E. Request to use EPSL: An employee who seeks to use this EPSL shall request such leave in writing to the Human Resources Department, stating the reason the leave is requested. A form for requesting leave under this Policy will be available from the Human Resources Department.
Documentation supporting the need for leave must be included with the request for leave, such as:
- A copy of the federal, state or local quarantine or isolation order related to COVID-19 applicable to the employee, or the name of the government entity that issued the order.
- Written documentation from a health care provider advising the employee to self-quarantine due to concerns related to COVID-19, or the name of the provider who advised the employee to self-quarantine.
- The name of the individual for whom the employee is taking leave to care who is subject to a quarantine or isolation order or is advised to self-quarantine, and the relationship between the employee and such individual.
- The name and age of the child or children being cared for; the name of the school, place of care, or child care provider that closed or became unavailable; and a statement that no other suitable person is available to care for the child during the period of requested leave.
- For children over age 14, a statement indicating the special circumstances that require the employee to provide care during daylight hours.
F. Reasonable Notice: After the first workday (or portion thereof) an employee receives EPSL under this Policy, the Company may, in its sole discretion, require the employee to provide reasonable notice of the need for additional EPSL in order to continue receiving such EPSL.
G. Termination of the Need for EPSL: Once the reason for which the employee took EPSL has concluded, the employee shall return to work on the employee’s next regularly scheduled workday or shift.
H. Return to Work: Prior to returning to work from EPSL, employees will be required to complete a Confidential Health Form, certifying that the employee does not present a risk of spreading COVID-19 in the workplace.
I. Carryover: This EPSL will not carry over to the following calendar year and is in addition to any paid sick leave currently provided by the Company.
J. Overtime: Any hours taken as EPSL do not count as hours worked for purposes of calculating an employee’s entitlement to overtime.
K. No Need for Replacement Employee: Employees who take EPSL are not required to search for or find a replacement employee to cover the hours during which the employee is using EPSL.
L. Termination of Employment: If an employee’s employment should end for any reason, any unused EPSL will not be paid out as wages upon termination, and shall be forfeited by the employee.
M. Coordination with Other Laws: The Company will comply with any and all applicable federal and state laws enacted to address the COVID-19 virus, and this Policy is drafted to coincide with the FFCRA. In the event of any conflict between this Policy and the FFCRA, any federal regulations or guidance related to the FFCRA, or any other paid sick leave laws passed in response to COVID-19, the terms of the applicable state or federal legislation that conflicts with or supersedes this Policy shall control.
N. Effective Date and Expiration: This Policy becomes effective on April 1, 2020 and any rights to EPSL shall expire on December 31, 2020, or earlier upon such notice from the Company.
*The U.S. Department of Health and Human Services (HHS) has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave.