Guidance on Paid Time Off for Employees Unable to Work Due to COVID-19
By Frank T. George
The Families First Coronavirus Response Act became effective on April 1, 2020, and it has major implications for employers and their employees who have been impacted by the COVID-19 outbreak.
It specifically requires small and mid-size employers—those with fewer than 500 employees—to provide paid sick leave to certain employees who are unable to work.
When is an employee entitled to paid sick leave?
An employee may take paid sick leave for any of the following reasons:
- the employee is subject to a quarantine or isolation order;
- the employee has been advised by a doctor to self-quarantine;
- the employee is experiencing symptoms of COVID-19;
- the employee is caring for someone who is subject to a quarantine order or who has been advised by a doctor to self-quarantine;
- the employee is caring for a child whose school has been closed due to COVID-19; or
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
While on leave, how much is an employee paid?
The amount of pay to which an employee is entitled depends on the reason for the employee’s leave.
If an employee is on leave because he/she is subject to a quarantine order, has been advised by a doctor to self-quarantine, or is experiencing symptoms of COVID-19, he/she is entitled to 80 hours of paid time off at his/her regular hourly rate (but the amount is capped at $511 per day).
If an employee is on leave because he/she is taking care of a child whose school has closed or is taking care of a person who is subject to a quarantine order or who has been advised to self-quarantine, the employee is entitled to 80 hours of paid time off at 2/3 of his/her regular rate of pay (but the amount is capped at $200 per day).
Is an employee ever entitled to more than 80 hours of paid leave?
Of the six reasons for leave provided above, the only reason that permits an employee to take more than 80 hours of paid leave is No. 5—i.e. the employee must take care of a child whose school has been closed.
Once they have been on leave for ten days, these employees become entitled to an additional 10 weeks of pay under the Emergency Family Medical Leave Expansion Act. During these ten weeks, they are to receive two thirds the regular rate of pay for the number of hours they’re ordinarily scheduled to work (but not more than $200 per day). If an employee does not work a regular schedule—or the schedule varies—the employee is entitled to two thirds of his/her regular rate of pay for the average number of hours the employee typically worked in a two-week period over the past six months.
Sometimes, an employee is regularly scheduled to work overtime hours. If that’s the case, then the employee is entitled to payment for all of the hours he/she would have ordinarily worked if he/she wasn’t on leave. The employee is not, however, entitled to time and a half. For example, if an employee typically works 50 hours per week, the employee should receive two thirds of his/her regular pay rate multiplied by the 50 hours he/she is ordinarily scheduled to work.
What tax credits are available to employers?
The employer is entitled to a fully refundable tax credit equal to the required paid sick leave wages. This amount includes the employer’s share of Medicare tax imposed on the leave wages and its allocable cost of maintaining health insurance coverage for the employee during the leave period. The employer is not subject to the employer portion of social security tax imposed on such wages.
Frank George is an attorney at the Cleveland, OH-based law firm, McCarthy, Lebit, Crystal & Liffman. You can also view his article in Crain’s Cleveland Business.
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