COVID-19 Bill with FMLA leave and sick pay provisions is passed by House and moves to Senate

In response to the unprecedented impact of the Coronavirus (COVID-19), on March 14 the  U.S. House of Representatives passed the Families First Coronavirus Response Act, which is intended to provide a broad range of assistance to businesses and individuals. Specifically, for employers and employees the bill includes measures that will expand the FMLA and provide for emergency paid leave for employers of 500 or fewer employees. The bill would extend these protections through the end of 2020.  
 
Although the legislation must still be considered in the Senate this week, President Donald Trump has already indicated his support. While some changes in the Senate are likely, once the legislation is passed employers will need to ramp up quickly. Employers should take time now to become familiar with the parameters of this legislation.
 
Expansion of FMLA to COVID-19 leaves. 
 
Notably, the bill expands the FMLA’s time off rights of up to 12 weeks of leave to encompass a “Public Health Emergency Leave” (referred to here as “FMLA-C19” leave).  The FMLA-C19 leave is available for a broader group of employees and for specific COVID-19 related reasons.   
 
As passed by the House, the bill includes the following changes to the scope of the FMLA: 
 
  1. Covered employers. Significantly, an employer that employs "fewer than 500 employees" is a “covered employer” for purposes of FMLA-C19 leave. In contrast, the FMLA applies to employers with 50 or more employees. 
  2. Eligible employees. An employee employed for at least 30 days is eligible for the FMLA-C19 leave rights. This is in contrast to the FMLA which requires 12 months of employment for FMLA coverage. 
  3. Expanded family member definition. The definition of parent is expanded to include foster and adoptive parents, stepparents, parents of a domestic partner, parental in-laws, guardians, and those who stood in loco parentis. The bill also includes next of kin and grandparents in the definition of family member. 
  4. Reasons for FMLA-C19 Leave. FMLA-C19 leave is available for the following reasons:
    • To follow a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus.
    • Leave to care for a family member who is under a coronavirus-related quarantine.
    • Leave to care for an employee’s minor son or daughter if the school or childcare is closed or the childcare provider is unavailable related to coronavirus.
  5. Pay for FMLA-C19 to care for a family member. The first 14 days of any FMLA-C19 leave may be unpaid, but available employer-provided paid leave may be used.  Significantly, after the first 14 days of FMLA-C19 leave, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay. These pay requirements apply to only the FMLA-C19-related leave reasons noted above.
  6. Notice Requirement. The bill provides that an employee will provide the employer with as much “notice of leave as is practicable.”
  7. Job Restoration.  Employers with 25 or more employees must restore an employee to the same or similar job following any FMLA-C19 leave. 
  8. Tax Credit for Wages. A refundable tax credit will be available for employers equal to 100% of qualified wages required to be paid for the Emergency FMLA-C19 leave for each calendar quarter.  
Remember, as of this posting, this legislation is still pending. If passed and signed by the president, the provisions will take effect in no later than 15 days and would end on Dec. 31, 2020.
 
Emergency Paid Sick Leave Time for Affected Employees
 
The legislation also provides for 80 hours of emergency paid sick leave for full-time employees (pro-rata for part-time employees). However, when caring for a family member, sick leave is paid at two-thirds the employee’s regular rate.  This emergency paid sick leave is available for the following reasons:
 

       Reasons for Emergency Paid Sick Leave Time 

  1. The employee is diagnosed with coronavirus.
  2. To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus.
  3. To comply with a recommendation or order by a public official or a health care provider that the physical presence of the employee on the job would jeopardize the health of others because the employee was exposed to coronavirus or is exhibiting coronavirus symptoms.
  4. To care for or assist a family member of the employee who is self-isolating because a family member has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care.
  5. To care for a family member if a public official or a health care provider makes a determination that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to the coronavirus or due to the family member’s exhibition of symptoms of coronavirus.
  6. To care for the employee’s child if the school or childcare has been closed or the childcare provider is unavailable because of coronavirus.
       
       Use of Emergency Paid Sick Leave Time
 
  1. Sequencing. The bill provides that an employee can first use the emergency paid sick time before using other paid time off provided by an employer. 
  2. Coordination with existing policies. Importantly, if an employer already offers paid sick leave to its employees, emergency paid sick leave must be in addition to the already-existing leave. An employer cannot amend its sick leave policy to avoid offering additional leave. 
  3. No discrimination or retaliation. The bill also prohibits discrimination or retaliation against an employee for taking a coronavirus-related leave. 
  4. Tax credit. Finally, to help defray the cost of the paid leave, the bill makes available a tax credit equal to 100% of sick leave wages paid by an employer.
 
Unemployment Benefits Expanded
 
The bill also provides for emergency grants to states for activities related to processing and paying unemployment insurance (UI) benefits, under certain conditions, including requiring employers to provide notice of potential UI eligibility to laid-off workers
 
As noted above, the Senate will consider this legislation this coming week.  Although the broad parameters of the bill are likely to remain in place, we will continue to provide updates as some changes from the Senate should be anticipated.   
 
Once signed, the law would be effective within 15 days and will require employers to take quick action to comply, including with required workplace postings and new or amended FMLA, leave of absence, and sick time or paid time off policies. Your McDonald Hopkins attorneys are available to assist your organization in understanding and complying with the new law. 
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