In the wee hours of Saturday, March 14, 2020, the House of Representatives passed H.R. 6201, the Families First Coronavirus Response Act, three days after its introduction. Of primary interest to employers, if enacted, the bill would expand the Family and Medical Leave Act (FMLA) to include emergency FMLA leave to employers with 1 to 500 employees. The bill would also create emergency paid sick leave, provide tax credits to employers to finance these benefits, and provide additional federal funding to the states for unemployment insurance benefits. To become law, the House bill must also pass the Senate and be signed by the president. Although the White House worked with the House on the final version of the bill and President Trump has endorsed its enactment, as of Monday morning, March 16, the Senate had not yet scheduled a time to take up the bill.
The final version of the bill – introduced just one half-hour before its passage – does not include the payroll tax suspension that the president wanted. The Democrats also did not get all that they wanted in the bill; it omits the permanent paid sick leave mandate for public health emergencies that was contained in the original version and, instead, provides paid sick leave only for the current COVID-19 pandemic.
Although the bill includes relief beyond employment issues, here, we analyze only the employment-related provisions.
Division C – Emergency Family and Medical Leave Expansion Act
This act would amend the FMLA as follows:
- Employees would be entitled to 12 weeks of leave for “a qualifying need related to a public health emergency.” The provision expires on December 31, 2020.
- Paid sick leave may be provided for certain periods of leave related to a qualifying need related to a public health emergency. (See discussion of paid sick leave below.)
- To be eligible for this public health emergency leave, employees would have to have been employed for at least 30 calendar days.
- The employer size threshold public health emergency leave would be “fewer than 500 employees” rather than “50 or more employees” applicable for all other FMLA leaves.
- “Qualifying need related to a public health emergency” is defined as:
- Complying with a recommendation or order of a public official or healthcare provider on the basis that:
- The physical presence of the employee on the job would jeopardize the health of others because of either exposure to the Coronavirus or exhibition of symptoms of Coronavirus by the employee; or
- The employee is unable to both perform the functions of his or her position and comply with the applicable recommendation or order.
- To care for a family member where a public official or healthcare provider determine that the presence of that family member would jeopardize the health of other individuals in the community because of either exposure to the Coronavirus or exhibition of symptoms of Coronavirus; or
- To care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the childcare provider of such son or daughter is unable to care for the child due to a public health emergency.
- Complying with a recommendation or order of a public official or healthcare provider on the basis that:
- A public health emergency is an emergency with respect to Coronavirus declared by the federal, state, or local authority.
- Relationship to paid leave:
- The first 14 days of leave may consist of unpaid leave.
- Employees may substitute other leave for unpaid leave.
- Employers shall provide paid leave for each day of leave related to coronavirus after the initial 14 days of leave.
- Paid leave is equal to 2/3 of the regular rate of pay for the number of hours usually worked.
Division E – Emergency Paid Sick Leave Act
- This act would require employers to provide paid sick leave for:
- Self-isolation due to diagnosis of Coronavirus;
- To obtain a medical diagnosis or care if the employee is experiencing the symptoms of Coronavirus;
- To comply with a recommendation or order by a public official or a healthcare provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of:
- Exposure of the employee to Coronavirus; or
- Exhibition of symptoms of Coronavirus by the employee
- To care for or assist a family member of the employee:
- Who is self-isolating because the family member has been diagnosed with Coronavirus;
- Who is experiencing symptoms of Coronavirus and needs to obtain medical diagnosis or care; or
- With respect to whom a public official or healthcare provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of:
- Exposure of the family member to the Coronavirus; or
- Exhibition of symptoms of Coronavirus by such family member: or
- To care for the child of the employee if the school or place of care has been closed, or the childcare provider is unavailable, due to Coronavirus.
- Duration of paid sick leave:
- Full time employees – 80 hours.
- Part-time employees – number of hours equal to the number of hours that the employee works, on average, over a 2-week period.
- No carryover from year to year.
- Employers with existing paid sick leave policies:
- Paid sick leave under this act would be in addition to previously available sick leave.
- Employers may not change their sick leave policies to avoid providing this additional sick leave.
- Use of paid sick leave must be available immediately for any of the reasons described above, regardless of how long the employee has been employed by the employer.
- Employers may not require employees to use other paid leave provided by the employer before using paid sick leave.
- Employers must post a notice of this act.
- This act expires on December 31, 2020.
- Covered employers are those employing fewer than 500 employees (for private entities or individuals) and those employing 1 or more employees (for public agencies or any other entities that are not private).
- Required compensation:
- Except for when taking care of a family member or child (where the employee shall be compensated at 2/3 of the employee’s regular rate of pay), the employee shall receive his or her regular rate of pay or minimum wage (whichever is greater).
Additional Provisions
- If enacted, the bill would provide financial assistance to employers to pay for these new benefits. Specifically, Division G of the bill provides tax credits to employers for the paid sick and paid family and medical leave created by the bill.
- The bill would provide $1 billion in 2020 for emergency grants to states for activities related to processing and paying unemployment insurance benefits, interest free loans to states to pay regular unemployment insurance benefits, and technical guidance to states that would set up work-sharing programs, in which employers reduce hours instead of laying off employees. Employees would receive partial unemployment benefits to offset the wage loss. Finally, the bill would provide for 100% funding of extended unemployment benefits to states with higher than normal rates of unemployment. As we all know, the situation is developing rapidly, seemingly by the minute. Please keep checking our blog, the Employment Law Commentary for employment-related developments and our Coronavirus (COVID-19) Resource Center for continued advice on the numerous issues we are following.