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What the Families First Coronavirus Response Act means for you

Mar 18, 2020

UPDATED MARCH 18, 2020 – 4:52 P.M. (CDT)

On March 18, 2020, Congress passed H.R. 6201, the Families First Coronavirus Response Act. The Act, which is on its way to the President’s desk for immediate signature, includes many emergency measures to address COVID-19. The provisions with the greatest potential to impact employers and employees nation-wide are the Emergency Family and Medical Leave Expansion Act of 2020 and the Emergency Paid Sick Leave Act.

NEW: Department of Labor issues official FAQ on Families First Coronavirus Response Act

The final Act varies slightly from the bill originally passed by the House. The original bill required covered employers to provide eligible employees with 2 weeks of emergency paid sick leave for COVID-19 related reasons and up to 12 weeks of paid leave for employees who went on leave for COVID-19 related reasons, including COVID-19 exposure, quarantine, or due to a school closing. The amended version lessens this burden; only employees who are unable to work or telework due to a school closing would be entitled to the 12 weeks of paid leave under the amended version of the bill. Employees will be paid two-thirds their typical earnings with a cap of $200 per day. The updated bill also exempts healthcare personnel and emergency responders. 

Below are the highlights of the paid leave portions of the Act, as amended, followed by a “heads up” on what’s next. Please check back soon for more information and a Q&A on the final Act:

Emergency Paid Sick Leave Act

 This portion of the bill requires employers with fewer than 500 employees to provide up to 80 hours of paid sick leave to all employees for certain covered purposes related to COVID-19. Here are the key components of the paid sick leave mandate:

  • Full-time employees are entitled to 80 hours of paid sick leave, while part-time employees are entitled to the number of hours equal to the hours the employee works over a 2-week period (i.e., a part-time employee who works 20 hours per week would receive 40 hours in paid sick leave).
  • The paid sick leave may be used by employees immediately with no minimum employment period for eligibility.
  • The paid sick leave may be used when an employee is unable to work (or telework) because:                                           
    • The employee is subject to a Federal, State, or local quarantine/isolation order;
    • The employee has been advised by a health care provider to self-quarantine due to COVID-19-related concerns;
    • The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
    • The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
    • The employee is caring for a son or daughter because their school or place of care has been closed, or their child care provider is unavailable, due to COVID-19 precautions; or
    • For other substantially similar conditions that may be later specified by the Secretary of Health and Human Services.
  • If an employee uses paid sick leave for reasons 1, 2, or 3, then the employer must pay the employee their full earnings, with a cap of $511 per day ($5,110 total). If the employee uses paid sick leave for reasons 4, 5, or 6, then the employee must be paid in an amount not less than two-thirds of the employee’s earnings, with a cap of $200 per day ($2,000 total).
  • Employers with existing paid sick leave policies should note that the paid leave provided by this Emergency Paid Sick Leave Act would be in addition to their own policy’s paid leave, and employers would be prohibited from changing their existing leave policy to avoid this new requirement. Employers would also be required to post a notice regarding employees’ rights under the law (a model notice will be made available for this purpose).
  • An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.
  • An employer of an employee who is a healthcare provider or an emergency responder may elect to exclude such employee from this Emergency Paid Sick Leave Act.
  • The Department of Labor may promulgate regulations allowing hardship exemptions for employers with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”
  • If enacted, the Emergency Paid Sick Leave Act would take effect no later than 15 days after the enactment of the Families First Coronavirus Response Act.
  • The Act would expire on December 31, 2020.

Expansion of the Family and Medical Leave Act

The bill seeks to temporarily expand the Family and Medical Leave Act (“FMLA”) by providing eligible employees with up to 12 weeks of FMLA leave for a qualifying need related to COVID-19. Here are the key components of the proposed FMLA expansion:

  • It applies to employers with fewer than 500 employees, which will include employers not currently covered by the FMLA.
  • It provides the Secretary of Labor with authority to exempt health care providers and emergency responders, as well as small businesses with fewer than 50 employees if the requirements would jeopardize the viability of the business.
  • The leave benefit covers employees who have been employed for at least 30 calendar days.
  • The 12 weeks of leave is available to employees who are unable to work (or telework) due to a need for leave 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 their child care provider is unavailable, due to COVID-19.
  • The first 10 days of this leave may be unpaid, but employees may substitute any accrued paid leave, including up to 2 weeks of paid sick leave pursuant to the Emergency Paid Sick Leave Act (discussed above), during this time.
  • The remainder of leave beyond the 10-day period must be paid by the employer in an amount not less than two-thirds of an employee’s regular earnings, however, employers are not required to pay an employee more than $200 per day ($10,000 total).
  • Employees who work for employers with 25 or more employees must be reinstated to their jobs after returning from leave unless their job no longer exists due to COVID-19-related economic conditions. In which case, an employer would have an ongoing obligation to make reasonable efforts to contact the employee if an equivalent position became available.
  • The Department of Labor may promulgate regulations allowing hardship exemptions for employers with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”

What Is Next for the Families First Coronavirus Response Act?

The Senate is expected to vote on and pass the bill on Wednesday, March 18. This timeline could be delayed slightly by an amendment proposed by Senator Rand Paul and scheduled for a vote on Wednesday as well; the amendment is not expected to pass. In a briefing on Tuesday, Senate Majority Leader Mitch McConnell said he expects the bill to pass the Senate without changes and go directly to the President’s desk for immediate signature.

Potential Future Legislation

Even before the main relief bill has been passed, both chambers of Congress and the White House are promising further legislation. Senator McConnell said he met over the weekend with the chairs of eight different Senate committees to discuss other potential legislation to address the crisis, including financial assistance, aid to small businesses, and support for the healthcare system. Senators have confirmed they are working on a second stimulus package that will be proposed soon after the House bill is finalized. This package is expected to be more business-oriented—for example, the Senate Small Business Committee has said this will include grants and tax relief for small businesses. In the White House press briefing on Saturday, Vice President Mike Pence stated the administration also planned to propose provisions aimed at the cruise and airline industries. Secretary Mnuchin has also signaled the Trump administration’s support for measures that would include assistance for airlines and perhaps even a payroll-tax holiday or other tax relief.

Meanwhile, on the other side of the aisle, House Speaker Nancy Pelosi too has sent a letter to all House members stating, “We have already begun work to develop a third emergency response package that will continue to put Families First.” While no details were provided, many expect that this might include temporary cash payments to those directly affected by the virus.  

This situation is evolving by the hour. Please check back for updates as the Families First Coronavirus Response Act and potential subsequent legislation move through Congress. 

READ MORE:

Wage and hour and payroll practices in the age of COVID-19

An employee has tested positive for COVID-19. Now what?

Planning for furloughs or layoffs in response to the COVID-19 pandemic

What employment lawyers are telling their clients about the coronavirus

EEOC issues ADA guidance on coronavirus

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