Updated: March 27, 2020
On March 18, 2020, the U.S. House of Representatives and U.S. Senate passed
a bill that, once signed into law, will impose significant changes upon
employers’ sick leave and family and medical leave requirements. President
Trump has publicly signaled support for this bill’s passage, and it likely
will be signed into law in short order. The following is a brief summary of
the bill’s requirements.
The bill has two key components: (1) emergency paid sick leave, and (2)
emergency paid family and medical leave expansion. Once passed, the bill
will require employers to comply within 15 days after its date of
enactment. The new law becomes effective on April 1, 2020 and is
set to expire on December 31, 2020.
Emergency Paid Sick Leave
All private employers with fewer than 500
employees, and all government employers regardless of size, are covered
under the emergency paid sick leave portion of the bill. Any current
employees of an employer covered by the bill would be entitled to some
amount of emergency paid sick leave, regardless of whether the employee is
part-time or full-time. The bill does not require that an employee be
employed for a minimum amount of time to be entitled to leave.
Specifically, the bill would require covered employers to provide up to two
weeks of paid sick leave to employees affected by COVID-19. Full-time and
part-time employees would be subject to differing requirements. Full-time
employees would be entitled to two weeks (i.e., 80 hours) of paid sick
leave. Part-time employees, however, would be entitled to the equivalent of
two weeks of paid sick leave, based on the average number of hours the
part-time employee works. For example, if a part-time employee is regularly
scheduled to work 20 hours per week, the employee would be entitled to 40
hours of total paid sick leave.
An employee may use emergency paid sick leave under the bill for any of the
— to comply with a federal, state or local quarantine or isolation
order related to COVID-19
— to self-quarantine, if the employee has been advised to do so by a
local healthcare provider
Diagnosis or Treatment
— to obtain a medical diagnosis or treatment if the employee is
experiencing symptoms of COVID-19
Care for a Quarantined Individual
— to care for an individual required to be quarantined or advised to be
— to care for an employee’s child if the child’s school or child care
provider has been closed or is unavailable due to COVID-19-related
Substantially Similar Care
— to care for a substantially similar condition, as determined by the
secretary of health and human services
Total paid leave is capped at $511 per day and $5,110 in the aggregate (per
employee) for leave due to items 1, 2 and 3 above. For items 4, 5 and 6
above, total paid leave is capped at $200 per day and $2,000 in the
aggregate (per employee).
Employees, however, may not use paid sick leave under the bill if they are
unable to work solely due to business decisions or operational closures.
Family and Medical Leave Expansion
The family and medical leave aspect of the bill applies to all private
employers with fewer than 500 employees, and to
all government employers regardless of size. However, the most recent
revision contains an exemption for small businesses with fewer than 50
employees if its requirements would jeopardize the viability of the
business. All employees who have been employed for at least 30 calendar
days would be covered by the family and medical leave expansion.
Employers would be required to provide up to 12 weeks of job-protected paid leave under the Family and Medical Leave Act
(FMLA) for COVID-19. The first 10 days of such leave may be unpaid.
Employees may use accrued paid leave during the first 10 days, but may not
be required to do so. After the first 10 days, the employer must compensate
the employee in an amount not less than two-thirds of the employee’s
regular rate of pay. However, total paid leave under the bill may not
exceed $200 per day and $10,000 in the aggregate (for each employee).
Employees may take this new, paid leave under the bill only if the employee
is unable to work (or telework) due to a need for leave to care for a child
under age 18 if the child’s school or place of care has been closed, or if
the child care provider is unavailable due to COVID-19. This is
significantly more limited than the initial draft of the bill, which
provided paid FMLA leave for employees who are quarantining or exhibiting
symptoms of COVID-19, or caring for others who are quarantining or
Employees taking leave under this provision of the bill are entitled to job
protection, similar to regular FMLA leave. In the final version of the
bill, an exception from the job protection requirement applies to employers
with fewer than 25 employees, provided, among other things, that the
employer makes reasonable efforts to restore the employee’s position.
Finally, the bill provides immunity from employee civil lawsuits stemming
from COVID-19 leave for small employers who fall under the COVID-19 leave
provisions, but who would not meet the standard, 50-employee threshold for
McGuireWoods will continue to monitor the progress of this and other COVID-19 related legislation and
provide updates along the way.
For answers to questions or additional guidance on how this new legislation
may impact your business, employers can contact the authors, any of the
McGuireWoods COVID-19 Response Team members or your McGuireWoods Labor and