Employment Law Update

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U.S. House Passes Families First Coronavirus Response Act; Bill Provides Paid FMLA Law and Emergency Paid Sick Leave Act

The Families First Coronavirus Response Act passed the U.S. House of Representatives on Monday, March 16, 2020, and awaits review by the U.S. Senate.

  • Update: U.S. Senate passes the bill and President Trump signs it into law
  • Guidance from the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission

Bill H.R. 6201, which has undergone several revisions since it was introduced Wednesday, March 11, 2020, would significantly expand the FMLA (FMLA Expansion) and create a new paid sick leave requirement (Emergency Paid Sick Leave) for any employer with fewer than 500 employees.

If passed by Congress, the new law would be enacted no later than 15 days after it is signed by President Trump.

The following is a summary of highlights from the latest version that passed the House.

Emergency Family and Medical Leave Expansion Act

The proposed legislation amends the existing FMLA law. The amended FMLA would still allow for up to 12 weeks of job-protected leave, but eligible employees would only need to have been on their employer’s payroll for 30 days or more. The current FMLA requirements that an employee be employed for at least one year, have worked for 1,250 hours during the past 12 months and have worked in a location where 50 employees are within a 75-mile radius would not apply to FMLA leave based on a public health emergency like the coronavirus.

The bill also expands the reasons for taking leave to include employees who are unable to work (or telework) due to a need for leave to care for a child younger than 18 if the child’s school or child care provider is closed or unavailable due to a public health emergency.

While the first 10 days of the emergency FMLA leave may be unpaid, the remaining leave must be paid at no less than two-thirds of the employee’s regular rate of pay if the employee is unable to work or telework because they are caring for a child as described above. The pay is capped at $200 per day and $10,000 in the aggregate for each employee over the duration of the emergency FMLA leave. Employees may elect to substitute accrued paid leave to cover some or all of the unpaid leave period.

The U.S. Department of Labor (DOL) would be authorized to issue regulations that will exclude certain health care providers and emergency responders from being eligible for the expanded FMLA leave.

These regulations would also exempt businesses with fewer than 50 employees from having to provide the emergency FMLA leave if it would jeopardize the viability of the business. Additionally, the job restoration requirement under FMLA may not apply to an employer with fewer than 25 employees if the employee’s position was eliminated due to economic conditions and other specified conditions under the new law are satisfied.

Finally, an employer of an employee who is a health care provider or emergency responder may elect to exclude such employee from the new expanded leave provisions. However, such employees would be entitled to leave under existing FMLA provisions and other applicable laws.

Emergency Paid Sick Leave Act

The new Emergency Paid Sick Leave proposal would require employers to provide full-time employees with two weeks (80 hours) of paid sick leave at their regular rate. Part-time employees are entitled to paid leave equal to the number of hours they work on average over a two-week period. Paid sick leave must be provided under the following circumstances if employees are unable to work (or telework) because they are:

  1. Being subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. Self-quarantining because the employee has been advised to do so by a health care provider;
  3. Experiencing symptoms of the coronavirus and obtaining a medical diagnosis;
  4. Caring for an individual who is subject to quarantine or advised by a health care provider to self-quarantine because of COVID-19 or is experiencing symptoms and needs to obtain a medical diagnosis;
  5. Caring for a child if the child’s school or child care center has closed; or
  6. Experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretary of the Treasury and the U.S. Secretary of Labor.

Employers would pay two-thirds of the employee’s regular rate if he or she takes leave to care for a family member or a child due to school closures. The leave is subject to a cap of $511 per day, $5,100 in the aggregate for leave used by the employee for absences due to items 1 to 3 above, and $200 per day, $2,000 in the aggregate for absences due to items 4 to 6 above.

Paid emergency sick leave will be available for immediate use without regard to how long the employee has been employed by the employer. Paid emergency sick leave must be paid at the employee’s regular rate of pay (at least the applicable federal, state or local minimum wage), except if the employee is providing care for a family member, in which case the employee is entitled to two-thirds of their regular rate of pay.

Employees may use the new emergency paid sick leave first before other types of leave. Employers are prohibited from requiring employees to use other paid leave provided by the employer before the employee uses the paid sick leave under the new proposal. However, the new sick leave law expressly provides that it is in addition to and does not diminish the rights an employee may have to leave under any other federal, state or local law, collective bargaining agreement or existing employer policy.

The DOL would be authorized to issue regulations, excluding certain health care providers and emergency responders from being eligible for the expanded sick leave and to exempt businesses with fewer than 50 employees if the paid leave requirement would jeopardize the viability of the business as a going concern.

Tax Credits for Paid FMLA and Sick Leave

The proposed legislation provides a refundable tax credit to employers subject to applicable caps and other limitations.

We will continue to send updates on H.R. 6201 as the situation develops; the U.S. Senate is expected to act on this measure this week.

If you have any questions about the proposed leave law, please contact Charles R. Bacharach and James D. Handley.

Charles R. Bacharach
410-576-4169  • cbacharach@gfrlaw.com

James D. Handley
410-576-4201  • jhandley@gfrlaw.com

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