Devine Millimet | NH Law Firm

Emergency Paid Sick Leave

Author: Margaret "Peg" O'Brien, Esq.

*Update - March 19, 2020: After this article was published, President Trump enacted the Families First Coronavirus Response Act.  We will be providing an updated article shortly outlining the two new leave laws and tax credits.

March 18, 2020

Yesterday, March 17, 2020, New Hampshire’s State Epidemiologist warned that there is now “evidence of community-based transmission” of COVID-19 in New Hampshire, which “raises concern that the COVID-19 outbreak is intensifying in New Hampshire.”   Employers continue to grapple with how to provide a safe workplace, continue business operations and simultaneously support their employees during these unprecedented times.  Governor Sununu has provided much needed support for employers and employees through the NH unemployment compensation system.  The federal government is still debating what support it will provide.  Currently pending in the U.S. Senate is H.R. 6201, referred to as the Families First Coronavirus Response Act (the “Act”) which would, among other things, require employers with less than 500 employees to provide emergency Paid Sick Leave and would expand the Family and Medical Leave Act.   In combination, the Paid Sick Leave and the Expansion of FMLA, if passed by the Senate in its current format, will require a covered employer to provide up to 14 total weeks of leave for employees for various COVID-19 related absences, 12 weeks of which must be paid leave (and the other 2 weeks may be unpaid).  In exchange for this mandated leave obligation, these employers would be eligible for tax credits against the tax imposed by Internal Revenue Code Section 3111(a), which deals with the employee portion of Social Security taxes.  Assuming this Act is passed by the U.S. Senate, and signed into law by President Trump, we will provide an updated e-alert.  As drafted, the law is scheduled to take effect 15 days after enactment and remain in effect until December 31, 2020.

In the meantime, pending additional guidance from the state or federal government, employers may wish to consider an interim emergency paid sick leave policy to aid employees during this pandemic and encourage employees to stay home if sick.  Employers should encourage employees to avoid spreading the COVID-19 virus through recommendations promulgated by the CDC, and a short-time paid leave policy tailored to this crisis may help achieve this goal. 
As with any leave benefit, employers should communicate the terms of any policy to employees in writing, and request that employees acknowledge receipt of the policy.  Below, for employers’ reference only, is a sample policy for consideration.  Any policy should be tailored to the particular workplace, and this policy is not intended to serve as or to replace legal advice on this important topic.
SAMPLE Emergency Paid Sick Leave

In light of the COVID-19 epidemic, and our Company’s commitment to the safety and well-being of its employees and other members of the community, the Company has adopted this temporary Emergency Paid Sick Leave (“EPSL”) Policy.  Employees are entitled to take a paid leave of absence, up to a maximum of two weeks of paid sick leave, subject to the terms and conditions outlined below:
  • Eligibility:  All employees are eligible for EPSL.  Full-time employees are eligible for up to a maximum of eighty (80) hours of paid sick leave this calendar year, based on their regularly scheduled workweek (e.g., if a full-time employee regularly works 35 hours per week, he/she will be eligible for up to seventy (70) hours of EPSL).  Part-time employees are eligible for up to two weeks of paid sick leave based on their regularly assigned weekly work schedule.
  • Reasons For Emergency Paid Sick Leave – An employee may use this EPSL to (1) comply with a requirement or recommendation to quarantine by federal, state or local order; (2) self-isolate because the employee is diagnosed with coronavirus; (3) obtain a diagnosis or care because the employee is exhibiting symptoms of coronavirus; (4) comply with an order by a healthcare professional to stay away from work due to the coronavirus; (5) care for or assist an at-risk family member who is self-isolating due to a diagnosis, who is exhibiting symptoms of coronavirus and needs to obtain medical care, or who is adhering to a requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus;  (6) take care of the employee’s child if the child’s school or daycare has been closed due to the COVID-19 coronavirus (including if the childcare provider is unavailable due to COVID-19); or (7) 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 Treasurer and the Secretary of Labor.
  • Request to use Emergency Paid Sick Leave – An employee who needs to use EPSL should request such leave in writing from [_________________], stating the basis for the reason (1) – (7) above. 
  • Carryover – This EPSL will not carry over to the following year and is in addition to any paid sick leave currently provided by the Company.
  • Termination – If an employee’s employment should end for any reason, EPSL will not be paid out as wages upon termination and instead shall be forfeited.
  • Calculating Rate Of Pay – Salaried employees will receive their regular weekly rate of pay as EPSL, pro-rated for partial weeks of EPSL use.  Hourly employees will receive their current hourly rate for the average number of hours the employee worked for the six months prior to taking EPSL. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work.  
  • Return to Work – Prior to returning to work, employees will be required to complete a Confidential Health Form, certifying that the employee does not present a risk of spreading COVID-19 in the workplace.  These forms are available from [_______________________].
  • Overtime – EPSL does not count as hours worked for purposes of calculating an employee’s entitlement to overtime.
  • Documentation – The Company reserves the right to request documentation to support EPSL, and will notify employees if documentation will be required.
  • Coordination with other Laws:  The Company will comply with any and all federal and state laws enacted to address the COVID-19 virus, and this policy is drafted to coincide with anticipated federal legislation requiring paid sick leave for employees.  In the event of any conflict between this policy and paid sick leave laws passed in response to COVID-19, the Company reserves the right to apply the terms of the applicable state or federal legislation.
  • Effective Date:  The Effective Day of this policy shall be March __, 2020.
  • Expiration: This policy will expire on December 31, 2020, or earlier, upon notice from the Company.  The Company will monitor this policy on a weekly basis.
  • Questions:  Any questions about EPSL should be directed to [________________].

Employees are reminded that they should not report to work if sick, and instead, should remain at home.  Guidance is available from the CDC website relative to when and why an individual should decide to self-quarantine.  Safety is our top priority.

We wish you all good health during the epidemic, and are here to help if you have legal concerns related to business operations during the COVID-19 outbreak.

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