COVID-19 & Your Business: Frequent Questions

What are the penalties for not providing EPSLA or EFMLEA leave or retaliating against employees who take such leave? (29 CFR 826.150)

The EPSLA prohibits employers from discharging, disciplining, or discriminating against any employee because the employee took paid sick leave, initiated a proceeding under or related to paid sick leave, or testified or is about to testify in such a proceeding.

An employer who fails to pay EPSLA sick leave is considered to have failed to pay minimum wages under the Fair Labor Standards Act. Such employers can be held liable for amounts equal to the federal minimum wage for each hour of paid sick leave denied, an additional equal amount as liquidated damages, and costs and reasonable attorney’s fees. Moreover, an employer can pursue a collective action that other affected employees can join. The Secretary of Labor can also pursue enforcement actions.

Under EFMLEA, employers are subject to the prohibitions that apply to FMLA leave. Employers are prohibited from discriminating, interfering with, restraining, or denying an employee’s exercise of or attempt to exercise any right under the FMLA, including the EFMLEA.

However, an employee can only bring an action against an employer under the EFMLEA if the employer has had 50 or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year, as required by section 101(4)(A)(i) of the FMLA.

Last updated June 22

These materials are made available by Jackson Walker for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.