House amends Emergency Leave Legislation before it gets to the Senate

The U.S. House of Representatives has already amended the broad Families First Coronavirus Response Act legislation that provides new FMLA rights and paid sick leave for employees related to the coronavirus (COVID-19). The House had just passed the legislation with overwhelming support on Saturday, March 14, 2020.

On Monday, March 16, 2020, however, before sending the bill onto the U.S. Senate, the House made “corrections” to the original legislation that modify some key aspects of the law.

A summary of key changes follows below: 

Changes to the Family and Medical Leave Act for COVID-19

  • Reasons for FMLA-C19 Leave: The original bill required an employer to provide up to 12 weeks of FMLA leave for COVID-19 reasons (FMLA-C19) to an eligible employee for “a qualifying need related to a public health emergency.” The amendment limits the term “qualifying need” to instances where an employee is unable to work or telework due to the need to care for a child if the child’s school or place of child care has been closed or the child care provider is unavailable, due to a public health emergency.
  • First 14 days of FMLA-C19 Leave: In the original bill, the first 14 days of FMLA-C19 leave was unpaid.  The amendment reduces the unpaid period to 10 days. Employees may use accrued paid leave for this initial period or the emergency sick leave, if applicable.
  • After the first 14 days: The remaining FMLA-C19 leave must be paid at two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work. Significantly, the amendment limits the amount of required pay for leave to no more than $200 per day and $10,000 total.
  • Relief of Small Employers: Perhaps in recognition of the burden of this legislation on small employers, the amended legislation includes language that exempts employers with fewer than 50 employees in a 75-mile radius from civil FMLA damages in a FMLA lawsuit.

Changes to Emergency Paid Sick Leave

As you may recall, the original legislation provided for 80 hours of emergency paid sick time for full-time employees (pro-rata for part-time employees) for their own COVD-19 related reasons and two-thirds pay to care for a family member.

 The amendment now provides for emergency paid leave for employees who are unable to work for the following reasons:

Reasons for Sick Leave

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. A health care provider has advised the employee to self-quarantine because of COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  4. The employee is caring for an individual subject or advised to quarantine or isolation.
  5. The employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions.
  6. The employee is experiencing substantially similar conditions as specified by the Secretary of HHS, in consultation with the Secretaries of Labor and Treasury.

Amount of Pay of Sick Leave

The amendment also caps paid leave at $511 per day ($5,110 in total) where leave is taken for the employee’s own illness or quarantine and $200 per day ($2,000 in total) where leave is taken for caring for others or school closures.

What’s Next for this Legislation?

There continues to be vocal push back on some provisions of the legislation. In particular, critics have pointed to the scope of coverage provisions that currently exclude large employers with over 500 employees.  Although the Senate was expected to begin considering the legislation as early as Monday that clearly did not happen.  It now looks like the Senate won’t take this up until later in the week. 

Employers who are scouring the bill to plan for implementation should understand that more changes are likely in the Senate.  Unfortunately, that means communications and policy decisions based on the legislation may need to wait for now.  As an old saying goes, “Fasten your seatbelts, it’s going to be a bumpy ride.”  

Stay tuned and McDonald Hopkins will continue to keep you updated on this legislation. 

+