OPM has issued further guidance on a new sick leave entitlement for federal employees created by one of the Coronavirus relief laws (the “CARES Act”), saying that an employing agency “must provide” the leave to employees that meet the law’s qualifications.
That “Emergency Paid Sick Leave Act” provision of that law provides up to 80 hours of paid leave in addition to an employee’s regular sick leave, payable at different rates depending on the situation. The paid leave is in addition to any other paid leave entitlements, according to the guidance.
The authority “applies to all federal civil service employees in the executive, legislative, and judicial branches” unless they are exempted, it says. The law allows agencies to exempt health care and first responder employees from the benefits, and a later law gives OMB even wider discretion to carve out exemptions. However, there has been no public announcement of any such exceptions.
Qualifying reasons for the paid leave benefit:
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 1 or has been advised as described in 2.
5. The employee is caring for his or her son or daughter 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, for reasons related to COVID–19.
6. The employee is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor
OPM’s guidance says, among other things, that:
· Qualifying quarantine, isolation, shelter-in-place or stay-at-home orders are those issued by any federal, state, or local government authority that cause an employee to be unable to work, including telework, but do not apply to employees traveling for official purposes.
· Employees may not take the leave sick leave for reasons 1 or 2 if they unilaterally decide to self-quarantine without medical advice, even if they have covid-19 symptoms.
· The first condition for reason 3 requires that an employee must be experiencing symptoms such as fever, dry cough, shortness of breath, while the second applies only while the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test.
· Qualifying persons under reason 4 are an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a personal relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined.
· Reason 5 applies only when an employee needs to, and actually is, caring for the employee’s son or daughter and if the employee is unable to work (including telework) as a result of providing care; it generally does not apply if someone else is able to provide the child care needs.
· There have been no determinations that would qualify leave to be used for reason 6.
· A qualifying employee has the right to use the leave “before using other paid leave available to the employee. An employing agency may not interfere with this right.”
· The authority expires December 31 and any unused leave may not be carried forward.
If employees meet the qualifications for reasons 1-3, the sick leave is paid at their regular pay, up to $511 per day and $5,110 total; for those qualifying for reasons 4-6, it is two-thirds of regular pay up to $200 per day and $2,000 total. (Note: The federal minimum wage rate, $7.25 an hour, is used in those calculations if it is higher than the employee’s regular hourly rate.)
The guidance, at www.opm.gov/coronavius, also covers numerous other considerations.
In addition, the law provides up to 10 additional weeks for reason 5, up to $200 a day and up to $12,000 total, for employees who fall under Title I of the Family and Medical Leave Act—mainly meaning Postal Service employees. (The most recent OPM guidance does not cover that aspect although prior guidance from both OPM and the Labor Department did.)