COVID-19/Coronavirus, Employment Law

COVID-19 FAQ: Vacation, Paid Time Off, and Paid Sick Leave

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Last updated April 8, 2020.

This general guidance is based on U.S. federal employment law and the current medical assessment of COVID-19. State and local laws may apply, and medical assessments may change, resulting in different conclusions.

Vacation, Paid Time Off, and Paid Sick Leave

  • Answer 1. Yes, subject to (a) the provisions of the employer’s current vacation time, paid time off (PTO), and other applicable policies, and (b) any state laws (e.g., implied contract of employment) restricting an employer’s ability to interpret or amend those policies. However, employers with fewer than 500 employees should review obligations under the Families First Coronavirus Response Act (FFCRA), such as the prohibition of requiring employees to use vacation or other paid time off before using the additional paid sick leave benefits afforded by the FFCRA.

  • A2. Yes, subject to (a) the provisions of an employer’s current vacation time, PTO, and other applicable policies, and (b) any state laws (e.g., implied contract of employment) restricting an employer’s ability to interpret or amend those policies. Employers should carefully consider the employee relations implications of such a policy. See our FFCRA FAQs.

  • A3. Yes, and some employers are already doing advancing paid time to employees. Employers that do so should consider drafting policies and agreements so that employees are required to repay advanced time off first from employees’ newly earned vacation time/PTO banks. Where not otherwise prohibited by state law, employers may be able to deduct any advanced time off from a departing employee’s vacation time/PTO payout or final paychecks. See our FFCRA FAQs.

  • A4. Yes. Employers should determine any deviation from their normal policies, including how and when it will apply. Employers should ensure that any such policy is consistently applied. See our FFCRA FAQs.

  • A5. Yes. Employers should clearly establish any deviation from their normal pay policies and be specific as to how and when it will apply. Employers should ensure that any such policy is consistently applied. Further, employers also should determine if there is any overlap with state or local paid sick leave laws. (See question 15 and our FFCRA FAQs.)

  • A6. Possibly, depending on (a) the jurisdiction and (b) the reason for the absence (e.g., the employee’s own illness, the employee was required to stay at home by public health authorities, the employee was required by the company to stay at home, or the employee stayed at home to care for the COVID-19 condition of a family member). Some paid sick leave laws may not apply to situations in which an employee (or a covered family member) is not actually exhibiting symptoms, while some states have specific provisions providing sick leave coverage when an employee is not actively sick but is directed to stay home by public health officials. It is unclear in many jurisdictions whether a paid sick leave law would apply if an employee does not have symptoms and is not directed by public health officials to stay at home, but the company directs him or her to do so. See our FFCRA FAQs.

 

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