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Federal Emergency Paid Sick Leave Act

UPDATE: A new Policy Bulletin has been issued to clarify the effects of a recent federal court decision on the types of leave available under the Federal Emergency Paid Sick Leave Act (“FEPSLA”) and the Emergency Family and Medical Leave Act (“EFMLA”), both of which are parts of the Families First Coronavirus Act (“FFCRA”). Please pay particular attention to the following:

  • As of August 3, 2020, employees may intermittently use FEPSLA and EFMLA to care for a minor child whose school or place of care is closed, or the child care provided is unavailable, because of reasons related to COVID-19 that are set forth in Category 5 of the Policy Bulletin 2020-01 (April 2020).
  • As of August 3, 2020, agencies may exempt from these laws “health care providers,” as defined by the Family and Medical Leave Act (“FMLA”). Please note that the definition of a “health care provider” has changed for purposes of FEPSA and EFMLA since the issuance of Policy Bulletin 2020-01 (April 2020). Agencies should not follow the definition in the regulations originally promulgated by the U.S. Department of Labor under the FFCRA; rather, you should use the definition set forth in the attached Policy Bulletin.
  • Agencies may exempt from these laws “emergency responders,” as defined in the FFCRA and/or the regulations promulgated thereunder and as set forth in the attached Policy Bulletin.
  • Agencies are no longer required to receive approval before exempting these employees (i.e., the newly-defined “health care providers” and “emergency responders”) from these laws.

The Federal Emergency Paid Sick Leave Act (FEPSLA or The Act) provides paid sick leave to individuals who are subject to quarantine or isolation, advised by a health care provider to precautionary-quarantine, or experiencing symptoms of COVID-19 and seeking a medical diagnosis. The Act also provides paid sick leave for employees who are taking care of individuals in certain categories or are caring for a minor child whose school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions.

The new law took effect on April 1, 2020 and will remain in effect until December 31, 2020. The following describes the State’s implementation of this new law.

Basic Requirements

The Act provides that each employer (as defined in the Act), including the State of New York, provide an employee with paid sick leave to the extent that the employee is unable to work due to a qualifying event. FEPSLA leave is considered a leave at full pay, without charge to accruals, for all attendance and leave purposes. Leave under this Act shall be called FEPSLA leave; agencies should add this leave category to their automated or paper timekeeping systems.

Eligibility

All employees, regardless of Attendance Rules coverage, are eligible for FEPSLA leave. There are no minimum service requirements for the FEPSLA benefits. In lieu of these paid benefits, employees may elect to use any available leave accruals.

Categories of Leave

Employees who are unable to work or telework are entitled to FEPSLA for any of the following qualifying events:

  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 (termed precautionary quarantine in New York) due to concerns related to COVID–19.
  3. The employee is experiencing symptoms of COVID–19 and is seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in (1) or (2) above.
  5. The employee is caring for a minor child of such employee, if the school or place of care of the minor child has been closed, or the childcare provider of such minor child 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.

An employee’s pay on FEPSLA leave is calculated based on their regular rate of pay, subject to specific monetary caps imposed by the FEPSLA.

An employee’s pay is calculated as follows:

An employee shall be paid at the employee’s regular rate of compensation, subject to a cap of $511 per day for a maximum of $511 per day and $5,110 in the aggregate, for those employees who work a 40-hour work week who take leave in the following categories:

  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- (precautionary) quarantine due to concerns related to COVID–19; or
  3. The employee is experiencing symptoms of COVID–19 and is seeking a medical diagnosis.

An employee shall be paid at two-thirds of the employee’s regular rate of pay, subject to a cap of $200 per day and $2,000 in the aggregate, for those employees who work a 40-hour work week and who take leave in the following categories:

  1. The employee is caring for an individual who is subject to an order as described in subparagraph (1) above or who has been advised as described in subparagraph (2) above.
  2. The employee is caring for a minor child of such employee if the school or place of care of the minor child has been closed, or the childcare provider of such minor child is unavailable, due to COVID–19 precautions.

An agency must use the following procedure to calculate the number of hours worked for part-time employees who work varied schedules from week-to-week:

  1. Subject to (2) below, a number equal to the average number of hours that the employee was scheduled, per day, over the 6-month period, ending on the date on which the employee takes the FEPSLA leave, including hours for which the employee took leave of any type.
  2. If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours, per day, that the employee would normally be scheduled to work.

It should be noted that FEPSLA requires that paid sick leave be paid only up to 80 hours over a 2-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the FEPSLA is capped at 80 hours.

Use of Leave

FEPSLA leave shall be available for immediate use by an employee, for the purposes described above, regardless of how long the employee has been employed by the State. An employee may first use FEPSLA leave for the purposes described above. An agency may not require an employee to use other paid leave provided by the State before the employee uses FEPSLA leave.

Leave shall be used in full day increments, except for the first day.

Amount of Leave

A full-time employee who works a 40-hour work week shall be entitled to 80 hours of FEPSLA leave. Less than full-time employees shall be entitled to a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.

In the case of a less than full-time employee whose schedule varies from week-to-week to such an extent that you are unable to determine with certainty the number of hours the employee would have worked if such employee had not taken paid sick time, the following procedure shall be used to calculate the number of hours worked:

  1. Subject to (2) or (3) below, a number equal to the average number of hours that the employee was scheduled, per day, over the 6-month period, ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type.
  2. If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours, per day, that the employee would normally be scheduled to work. OR
  3. If the employee did not work over a full 6-month period, average the hours worked over the period the employee did work.

Employees who work 37.5 hours per week will be entitled to 75 hours of leave in a 2-week period.

FEPSLA leave does not carry over and expires on December 31, 2020.

FEPSLA leave provided to an employee ends at the beginning of the employee’s next scheduled work shift immediately following the termination of the need for paid sick time.

An agency may not require, as a condition of providing FEPSLA leave, that the employee search for or find a replacement to cover the employee’s scheduled work times.

Notification

An employee must provide as much notice, as practicable under the circumstances, of the need for leave.

After the first workday (or portion thereof) an employee receives paid sick time under this Act, an agency may require the employee to check in each day.

An employee must provide an agency with notice of a change in status, as soon as practicable, after finding out about that change in status.

Documentation

An agency can require proof consistent with the categories of FEPSLA leave listed above.