Paid Sick Leave Under COVID-19

We have seen COVID-19 numbers skyrocket this fall. There has been a corresponding increase in employees who are forced to miss work for COVID-related reasons. Fortunately, the federal government anticipated this back in March, when it passed the Families First Coronavirus Response Act. This law creates two weeks of additional, mandatory paid sick leave for workers who are sidelined due to COVID-19. The relevant section of the act reads as follows:

(a) IN GENERAL.—An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unavailable 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.

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(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.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The Act goes on to require payment of two weeks of sick leave for such employees. It specifically states this must be offered in addition to any other paid leave already offered by that employer. It says:

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 leave time under subsection (a).

If an employer violates this section by refusing to offer paid sick leave, or even worse, firing the employee who is forced to take leave, that employer can be sued. If the plaintiff (the employee) is successful in such a lawsuit, the employer will be deemed to have violated certain provisions of the Fair Labor Standards Act. That means the employer may have to pay back lost wages/sick leave benefits, reinstate and/or promote a terminated employee, pay liquidated damages, pay the plaintiff’s costs of litigation, and pay the plaintiff’s reasonable attorney fees.

In general, if you have to miss work for one of the reasons outlined above, your employer has to provide you with two weeks of sick leave above and beyond any paid leave they offered prior to March 18, 2020. These protections are set to expire on Dec. 31, 2020, so any time missed after that date goes back to the old protocol (i.e., using your previously-available paid leave, or being out of luck if you don’t have paid leave). Thus far, Congress has not passed any law extending the added COVID protections. We’ll have to see whether such passage occurs during the current, “lame duck” session.

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