The Emergency Paid Sick Leave Act (Emergency PSL Act) covers private employers with fewer than 500 employees and all government employers. However, the Secretary of Labor is authorized to issue regulations for good cause that:

Covered full-time employees are entitled to 80 hours of paid leave (and more if the leave is for child care that qualifies for emergency paid family leave (see Emergency Family and Medical Leave Expansion Act). Part-time employees are entitled to the average number of hours the employee works during a two-week period.

Covered employees are entitled to paid leave for specified purposes related to COVID-19. Employers must provide paid sick leave if the employee is unable to work or telework because the employee:

Leave is available for immediate use, regardless of how long the individual has been employed by the employer. Employers cannot require an employee to:

After the first use of leave, employers may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time. Unused leave cannot be carried over to the following year.

Leave is paid based on the employee's regular rate of pay, depending on the reason for leave. Leave is paid at 100% of the employee's regular rate and capped at $511 per day and $5,110 in total for an employee who is:

Leave is paid at two-thirds of the employee's regular rate of pay and capped at $200 per day and $2,000 in total (not including additional emergency paid family leave) for leave needed:

Private employers can claim a tax credit against the employer's portion of Social Security taxes for the emergency paid sick leave wages paid to employees, subject to the same per-employee caps depending on the reason for the leave.

Employers must post a notice regarding employees' rights under the emergency law (to be made available by the Secretary of Labor by March 25, 2020). The law prohibits retaliation against employees who use emergency paid sick leave or complain about violations of the Emergency PSL Act.

Failure to comply with the Emergency PSL Act constitutes a failure to pay minimum wages in violation of the FLSA (see Practice Note, Wage and Hour Law: Overview: Remedies). However, the DOL has indicated that it will observe a temporary non-enforcement period for 30 days if the employer acted reasonably and in good faith (see DOL: FFCRA: Employer Paid Leave Requirements).

The law expressly states that it does not diminish any employee rights under an existing law, employer policy, or CBA. While this suggests that employers with existing paid leave policies must provide leave under the Emergency PSL Act in addition to leave already provided, explicit language to this effect was deleted from a prior version of the bill.

The Secretary of Labor is expected to issue regulations in April 2020.

For more information on the new law, see US House of Representatives: H.R. 6201, Families First Coronavirus Response Act: Emergency Paid Sick Leave and DOL: FFCRA: Employer Paid Leave Requirements.

For information about state and local paid sick leave laws, some of which provide leave for reasons related to public health emergencies, see Paid Sick Leave State and Local Laws Chart: Overview.

The new law expands the definition of employer regarding public health emergency leave to include all private employers with fewer than 500 employees, while the FMLA ordinarily only covers employers with 50 or more employees. However, for employers with fewer than 50 employees:

The Emergency FMLA also expands coverage by including employees who have been employed by the employer for at least 30 days. Under the FMLA, covered employees must have been employed for at least 12 months by the employer and worked for at least 1,250 hours during the previous 12 months.

However, employers that employ health care providers and emergency responders may elect to exclude those employees from the public health emergency leave requirements (H.R. 6201, § 3105).

The Emergency FMLA amends the FMLA to create a new category of protected leave for employees with a "qualifying need related to a public health emergency" (H.R. 6201, § 3102(b), adding a new section (F) to 29 U.S.C. § 2612(a)(1)). A qualifying need under this provision means the employee cannot work or telework due to the need to care for a son or daughter under 18 years of age if, because of a public health emergency regarding COVID-19, the child's:

Under the Emergency FMLA, the first ten days of leave necessitated by a public health emergency related to COVID-19 is unpaid. An employee may elect to substitute accrued paid leave during that time period under the leave provisions of the FMLA (29 U.S.C. § 2612(d)(2)(A) (allowing an employer to require an employee to use other accrued paid leave during FMLA leave)).

Leave after the first ten days must be paid at a rate at least two-thirds the employee's regular rate of pay based on the employee's regular schedule. For each employee, paid leave cannot exceed:

Private employers can claim a tax credit against payroll taxes for the Emergency FMLA wages paid to employees, subject to the employee caps on total paid leave (H.R. 6201, § 7003).

Because the Emergency FMLA adds another category of qualifying need to the FMLA, the total amount of available leave is the same as under the FMLA (12 weeks in a 12-month period). Under the Emergency FMLA, the first two weeks are unpaid and the remaining ten weeks are paid leave. Employees must provide notice to their employers as soon as practicable when the need for leave is foreseeable.

Employees returning from FMLA leave generally have the right to return to the same or an equivalent position. The Emergency FMLA contains an exception to the job restoration right for employers with fewer than 25 employees when their employees take public health emergency leave if all the following conditions are met:

For more information on state and local paid family and medical leave laws, see Paid Family and Medical Leave State and Local Laws Chart: Overview.