Late Monday, March 16, 2020, the House of Representatives approved several last-minute changes to the Families First Coronavirus Response Act (H.R. 6201), which was originally passed by the House on March 14, 2020. These changes will significantly reduce paid sick leave and paid family leave obligations that were part of the original bill. 

If enacted, the bill would continue to extend leave only to employees working for private-sector employers with less than 500 employees or covered public agencies regardless of size. The amendments related to the emergency paid sick leave and paid family leave under FMLA are summarized below. The legislation awaits Senate approval and is subject to further change. The White House’s push to provide direct payments to employees may also modify or supersede these provisions.

Emergency Paid Sick Leave Act

The 80 hours of emergency paid sick leave would apply to employees who are unable to work (or telework) due to a need for leave:

  1. To comply with a federal, state or local order to self-isolate;
  2. To comply with the recommendation of a health care provider to self-isolate;
  3. Because the employee is experiencing symptoms of COVID-19;
  4. To care for an individual who is subject to an order or recommendation to self-isolate;
  5. To care for the employee’s son or daughter if a school or place of care is closed, or the childcare provider is unavailable due to COVID-19 precautions; or 
  6. If the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

In one respect, the amended bill is broader than the original bill—under 4 above, the employee could use emergency paid sick leave to care for any “individual” subject to a quarantine or isolation order or whose health care provider advised the individual to self-quarantine. This provision had been limited to “family members,” with a broader definition than the FMLA (those definitions have been removed from the bill). 

Paid sick leave would be capped at $511 per day ($5,110 in the aggregate) for the uses described in 1, 2 and 3 above, which is to be paid at the employee’s full rate of pay. Paid sick leave also would be capped at $200/day ($2,000 in the aggregate) for the uses described in 4, 5 and 6 above, which is limited to two-thirds of the employee’s regular rate of pay.

The Secretary of Labor has authority to issue regulations for good cause: (1) excluding certain health care workers and emergency responders by allowing their employer to “opt out;” (2) to exempt small businesses with fewer than 50 employees if imposition of the paid sick leave requirements would jeopardize the viability of the business; and (3) “as necessary to carry out the purposes of this Act, including to ensure consistency between the [Emergency Paid Sick Leave Act and the FMLA Expansion Act],” as well as the tax credit provisions of the Families First Coronavirus Response Act.

Emergency FMLA Expansion Act

As rewritten, this portion of the bill would apply only to employees unable to work (or telework) due to a need for leave to care for the employee’s son or daughter under 18, if the son or daughter’s school or place of child care has been closed, or the childcare provider is unavailable due to a public health emergency. Public health emergency is defined to mean an “emergency with respect to COVID-19 declared by Federal, State or local authority.” This provision is significantly reduced from its original version, which would have covered an employee’s absence due to exposure or symptoms of COVID-19, as well as to care for a family member due to exposure or symptoms. 

The amended bill reduces the period of potentially unpaid leave from the first 14 days to the first 10 days. Employees still may elect to substitute paid leave, but are not required to do so. 

Eligible employees thereafter will be entitled to not less than two-thirds of their regular rate of pay for the number of hours that the employee would normally be scheduled to work, capped at $200/day ($10,000 in the aggregate). 

The employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees from the leave entitlement (the previous version of the bill only permitted the Secretary of Labor it issue regulations with such an exemption).

Employer Preparedness

The bottom line is that pending federal legislation to provide paid leave to employees out of work for COVID-19 related reasons is changing by the day. Employers should continue to plan now for the likelihood that some form of leave expansion will be enacted. In addition, employers should monitor state and local activity, as some jurisdictions are adopting or expanding mandated leave entitlements for workers to cover COVID-19 related circumstances.

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