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House Amends Bill Requiring Employers to Provide Paid Leave to Employees Affected by the Coronavirus/COVID-19

March 16, 2020

As I reported on March 16, 2017, over the weekend, the U.S. House of Representatives passed the Families First Coronavirus Response Act (the Bill) providing for mandatory paid FMLA leave and paid sick leave for employees working for employers with fewer than 500 employees impacted by the novel coronavirus (COVID-19).

However, before the Senate could take up the Bill, and while employers were still digesting the Bill’s proposed changes, late last night, the House made certain “corrections” to the Bill, changing fundamental provisions of the original legislation as it relates to The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act.

The Bill now heads to the Senate, where Senators are expected to take up the Bill sometime this week. As I promised to keep you updated, I have reviewed the “corrections” and outlined them below for you to review:

THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Qualifying Reasons for COVID-19-Related FMLA Leave:  The original version of the Bill allowed qualified employees to take COVID-19-related FMLA leave for “a qualifying need related to a public health emergency,” which was defined to include three separate and distinct reasons described in my earlier post. The amended Bill, completely redefines “a qualifying need related to a public health emergency,” as follows:

the employee is 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 the child care provider of such son or daughter is unavailable, due to a public health emergency.

Notably, this amendment removed the allowance of COVID-19-related FMLA leave due to the need to care for an employee’s family member or the need to stay at home because the employee has been exposed to COVID-19 or is experiencing COVID-19 symptoms.

Paid Leave Requirement: While the amended Bill still requires employers to provide paid COVID-19-related FMLA leave to their employees, it has made significant changes to what time must be paid and how time is to be paid:

  • First 10 Days: Under the original Bill, the first 14 days of COVID-19-related FMLA leave was to be unpaid; however, under the new version of the Bill, only the first 10 days of COVID-19-related FMLA leave are unpaid. Employees may still elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. Moreover, lawmakers removed the Bill’s prohibition on employers requiring employees to use any accrued paid leave for unpaid leave.
  • After the Initial 10 Days:  Under the amended Bill, just like the original Bill, after 10 days of unpaid leave, covered employers must provide paid COVID-19-related FMLA leave at no less than two-thirds the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled. However, the amended Bill caps this paid leave at $200 per day and $10,000 in the aggregate.

No Liability for Small Employers: Interestingly, the amended Bill added a section stating that employers who traditionally did not have to comply with the FMLA (i.e., those with fewer than 50 employees in a 75-mile radius) are not subject to civil FMLA damages for violating the proposed COVID-19-related FMLA leave.

THE EMERGENCY PAID SICK LEAVE ACT

Reasons for Sick Leave: The amended Bill changed the reasons for which an employee may take paid sick time. Now, an employee is only entitled to paid sick time if the employee is unable to work (or telework) due to a need for leave because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who (a) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or (b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

In an interesting move, under the amended Bill, employers may elect to exclude health care providers and emergency responders from the Bill’s paid sick leave requirements.

It is also notable that an employer is not required to provide paid leave to an employee who is subject to reduced hours or layoff because the employer’s business has been impacted by COVID-19.

How Paid Sick Leave Is Paid:  Employers are still required to pay paid sick time at the greater of:  (a) the employee’s regular rate or (b) the applicable minimum wage under the amended Bill. Moreover, when employees are using paid sick time for reasons 4-6 above, they are only entitled to two-thirds of this amount. However, like with the modifications to The Emergency Family and Medical Leave Expansion Act, the Bill places caps on the maximum paid sick time to which employees are entitled:

  • For reasons 1-3 above, $511 per day and $5,111 in the aggregate and
  • For reasons 4-6 above, $200 per day, and $2000 in the aggregate.

In Addition to Other Paid Sick Leave?:  The amended Bill has removed the express requirements that (1) employers already providing paid leave to their employees must provide the paid sick leave provided for by The Emergency Paid Sick Leave Act in addition to its already existing paid leave and (2) employers are expressly prohibited from changing their existing policies to avoid this additional requirement. Therefore, it appears that employers are now free to alter their paid leave policies to avoid the Bill’s paid sick time requirements. However, the amended Bill still allows employees to first use the paid sick leave under The Emergency Paid Sick Leave Act and employers may not require employees to use other paid leave before the employee uses the paid sick time under The Emergency Paid Sick Leave Act.

Secretary of Labor Regulations:  The amended Bill also allows the Secretary of Labor to issue regulations (1) excluding employers of certain health care providers and emergency responders from the coverage of the Act and (2) exempting small businesses with fewer than 50 employees from providing paid sick leave under #5 above when the imposition of such requirements would jeopardize the viability of the business as a going concern.

Importantly, the amended Bill still provides for refundable tax credits to be paid to employers to cover the costs associated with The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act.

Post & Schell’s Employment & Employee Relations Practice will keep you posted the status of the Bill and what actions the Senate takes on the Bill – which may be as soon as later this week.