Pending Legislation–Families First Coronavirus Response Act–Employment-Related Provisions (as of March 14, 2020)

The U.S. House of Representatives passed the Families First Coronavirus Response Act (H.R. 6201) early Saturday morning (March 14, 2020).  The Senate is expected to consider the bill early this week.  Majority Leader Mitch McConnell issued a statement explaining he has canceled this week’s state work period so the Senate can work on the legislation.  President Trump stated he fully supports the version of H.R. 6201 the House passed.  If this version of the law is enacted, the provisions summarized below could affect many employers in short order:

Division C – Emergency Family and Medical Leave Expansion Act

New Protected Leave Entitlement

This section of the Act would expand the federal Family and Medical Leave Act for a temporary period (through December 31, 2020) to require private employers with fewer than 500 employees and government employers to provide employees who have been employed for at least 30 days the right to take up to 12 weeks of job-protected leave under the FMLA for any of the following reasons:

·       To comply with a recommendation or order by a public official or health care provider to quarantine because the employee has been exposed to or is exhibiting symptoms of the Coronavirus (provided the employee cannot work while in quarantine);

·       To care for a family member who a public official or health care provider has quarantined because the family member has been exposed to or is exhibiting symptoms of the Coronavirus; or

·       To care for the employee’s child under the age of 18 if the child’s school or place of care has been closed, or if the child’s child care provider is unavailable, due to a public health emergency.

The term “family member” would be expanded for this particular type of leave to include a (1) parent, (2) spouse, (3) son or daughter under the age of 18, or (4) an individual who is a pregnant woman, senior citizen, an individual with a disability, or has access or functional needs AND who is a son or daughter of the employee, a next of kin of the employee, or a person for whom the employee is next of kin, or a grandparent or grandchild of the employee.

Paid Leave Provided By Employers

The first 14 days of the leave could be unpaid.  An employee, at their option, could substitute any paid sick leave, vacation or other paid time off.  (Note that employers with fewer than 500 employees would also be required to provide two weeks of emergency paid sick leave, which could be used by the employee during this otherwise unpaid period of leave. See the new emergency paid sick leave provisions below.) After those first two weeks, the employer would have to provide paid leave for each day of protected leave taken by the employee (up to another 10 weeks of leave).  The paid leave would be calculated at not less than two-thirds of the employee’s regular rate of pay, based on the hours the employee would otherwise have been scheduled to work.

Job Restoration

The FMLA’s job restoration provisions would apply, except that a small employer with fewer than 25 employees would not need to restore an employee to their job if, at the time the leave ends, the job position no longer exists due to economic conditions or other changes in the employer’s operating conditions caused by a public health emergency during the leave period.  However, the small employer would still have to make reasonable efforts to restore the employee to an equivalent position, and if those efforts fail, would have to contact the employee if an equivalent position becomes available within a 1-year period.

Exemptions

Note that although this expanded leave protection would apply to all private employees with fewer than 500 employees, the Act would give the Secretary of Labor the authority to issue regulations to exempt certain health care providers and emergency responders from the definition of “eligible employee,” and to exempt small businesses with fewer than 50 employees from the new leave requirements when the imposition of such requirements would “jeopardize the viability of the business as a going concern.”

Division E – Emergency Paid Sick Leave Act

Private employers with fewer than 500 employees and government employers would be required to provide employees with two weeks of paid sick leave (for immediate use), as follows:

·       Sick leave paid at 100% of the employee’s regular rate to self-isolate due to a Coronavirus diagnosis, to seek a diagnosis or obtain preventative care if the employee is exhibiting symptoms of the Coronavirus, or to comply with a recommendation or order to quarantine because of the Coronavirus.

·       Sick leave paid at two-thirds of the employee’s regular rate to care for or assist a family member for any of the reasons stated above or to care for the employee’s child if the child’s school or place of care has been closed, or if the child’s child care provider is unavailable due to the Coronavirus.

Full-time employees would be entitled to receive up to 80 hours of sick leave, and part-time employees would be entitled to the number of hours of sick leave that they typically work in a two-week period.

For purposes of this Act, family member would include a (1) parent (2) spouse (3) child, or (4) an individual who is a pregnant woman, senior citizen, an individual with a disability, or has access or functional needs AND who is a sibling of the employee, a next of kin of the employee or a person for whom the employee is next of kin, or a grandparent or grandchild of the employee.  The term “spouse” would include a domestic partner, which means another individual with whom the employee is in a committed relationship and both individuals share responsibility for a significant measure of each other’s common welfare.

Please note, this emergency paid sick leave would be IN ADDITION to any paid leave employers currently provide, and employers may not change their other paid leave policies on or after the date this law is enacted.  Employers would not be permitted to require employees to use their other paid leave before they use their emergency paid sick leave.

The requirements under the Emergency Paid Sick Leave Act would expire on December 31, 2020, and any unused paid sick leave would not carry over to the next calendar year.

Division G – Tax Credits For Emergency Paid Sick Leave and Paid Family and Medical Leave

Employers required to provide emergency paid sick leave would be allowed to take a tax credit against the employer portion of Social Security taxes for the amount paid by the employer for emergency sick leave wages, up to $511 per day if the employee needs to use sick leave for themselves.  The tax credit cap would be $200 per day for sick leave paid to employees taking care of a family member or child. The aggregate number of days taken into account per employee would not be permitted to exceed the excess of 10 over the aggregate number of days so taken into account for all preceding calendar quarters.

Employers required to provide paid Coronavirus-related Family and Medical Leave as described above would be allowed to take a tax credit for the qualified family leave wages paid, up to $200 per day, and $10,000 per employee in the aggregate.

The version of the Families First Coronavirus Response Act passed by the House of Representatives addresses other issues, including food and nutrition services, Covid-19 testing coverage and unemployment stabilization.  Here is a link to the text of H.R. 6201: https://docs.house.gov/billsthisweek/20200309/BILLS-116hr6201-SUS.pdf