Division E of H.R. 6201’s “Emergency Paid Sick Leave Act” Revised March 20, 2020

Updated March 20, 2020

On March 17, 2020, the NPA’s GRC provided information on Division E of H.R. 6201 that had passed the House of Representatives. This Update covers the final version of H.R. 6201 enacted by the Senate and signed by the President on March 18, 2020. You will receive a revised Update on Division C separately.

Information changed in the final bill appears in red ink below.
Employers with fewer than 500 employees will be required to provide two weeks of paid emergency leave immediately to all employees because of a qualifying need related to a coronavirus public health emergency. Division E is not limited to employees who have worked for periods of time provided in the FMLA or Division C.

Division E is effective on Thursday, April 2, 2020, 15 days after the bill’s enactment and expires on December 31, 2020.
What does Division E require?  Unlike Division C’s requirements, employers will be required to provide each employee two weeks of paid sick leave to the extent the employee is unable to work or telework for one of the following reasons related to COVID-19:

  1. is subject to a federal, state, or local quarantine or isolation order;
  2. has been advised by a health care provider to self-quarantine;
  3. is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. is caring for a person covered by one of the first two items on this list;
  5. is unable to work or telework in order to care for an employee’s son or daughter and only if the child’s school or place of care has been closed due to the public health emergency, or the child care provider of the child is unavailable, due to COVID-19 precautions; or
  6. Is experiencing any substantially similar condition specified by the Secretary of HHS in consultation with the Secretaries of Labor and Treasury.

This six-situation list contrasts with the one-situation list in Division C.

This six-situation list contrasts with the one-situation list in Division C.
When does Division E paid sick leave start? Division E paid sick leave shall be available for immediate use by the employee for the purposes mentioned above.
Which employees are eligible for Division E paid sick leave? Every employee – regardless of the duration of their employment with the current employer – is eligible for Division E paid sick leave if they claim it for one of the six (6) reasons mentioned above. The employer may not require the employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick leave under Division E. Paid sick leave under Division E cannot be carried over to the next year by the employee.
How does Division E calculate paid sick leave?  Division E specifies how paid sick leave must be calculated as follows:
▪ For part-time or hourly employees, the compensation should equal the number of hours that employee usually works on average over a two-week period.
▪ For full-time employees, this means 80 hours of paid sick leave.
▪ Division E paid sick leave for one of the 6 reasons mentioned on page 1 is not required to exceed $511 per day and $5,110 in the aggregate for uses described in items 1 through 3 above, and $200 per day and $2,000 in the aggregate for used described in items 4 through 6 above.
Division E contains a special rule for sick leave taken for care of family members. If an employee uses paid sick leave to care for a family member described in items 4 through 6 from the list on page 1, the employee should receive two-thirds of their regular rate of pay  as the employer is required to pay under section 7(e) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 207(e).
May employers require employees to use existing paid leave before using Division E’s special paid sick leave?  No. An employee may use Division E’s paid sick leave for any qualifying purpose but may not be required to do so by his or her employer.
Will FLSA enforcement powers apply to employers who do not comply with Division E? Yes. Failure to provide Division E sick leave will be treated as a failure to pay minimum wages and will be subject to FLSA penalties and remedies.
Will employers get federal relief for providing this paid sick leave?  Yes. Division G of H.R. 6201 sets reimbursements to covered employers and certain individuals in payroll tax credits and other tax credits.  We will report on Division G as soon as we can digest what it provides in relief and whenever the next bill, being drafted today, is available to read.

This GRC Update is not intended and should not be construed as legal advice to NPA members. 
Members should consult their own lawyers for legal advice.

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