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

By: Miriam L. Rosen, McDonald Hopkins

In response to the unprecedented impact of the Coronavirus (COVID-19), on March 14, 2020 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 provides for emergency paid leave for employers of 500 or fewer employees. The bill would extend these protections through the end of 2020.

Before the bill even made it to the Senate, the House amended it to make “technical corrections” on March 16th scaling back on some of the benefits in the initial bill.    President 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.

The summary below covers the bill as amended on March 16th and 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.
    1. Eligible employees. An employee employed for a least 30 day is eligible for the FMLA-C19 leave rights. This is in contrast to the FMLA which requires 12 months of employment for FMLA coverage.
    1. Expanded family member definition. The original bill included an expanded definition of parent  as well as coverage for next of kin and grandparents in the definition of family member.  Those provisions were eliminated in the amendment.
    1. 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;
    1. Pay for FMLA-C19.

            Under the amended bill, the first 10 days of any FMLA-C19 leave may be unpaid, but available     employer provided paid leave may be used.   

            Significantly, after the first 10 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 for childcare reasons only. Paid FMLA leave is capped at $200 per day or $10,000 in the aggregate.

    1. Notice Requirement. The bill provides that an employee will provide the employer with as much “notice of leave as is practicable.”
    1. Job Restoration. Employers with 25 or more employees must restore an employee to the same or similar job following any FMLA-C19 leave.
    1. 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 December 31, 2020.

Emergency Paid Sick Leave Time for Affected Employees

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  2/3rd pay to care for a family member.

The amendment now provides for emergency paid leave for employees who are unable to work or telework 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; or
    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.

Use of Emergency Paid 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.
    1. 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.
    1. No discrimination or retaliation. The bill also prohibits discrimination or retaliation against an employee for taking a coronavirus-related leave.
    1. 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 employment law attorney can assist your organization in understanding and complying with this pending law.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

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