The Families First Coronavirus Response Act (H.R. 6201) (the “Bill”), if passed by the Senate, would provide certain relief measures for those affected by the COVID-19 pandemic. The provisions with the most impact on employers include the creation of emergency paid sick leave and the expansion of FMLA coverage related to the coronavirus.
Emergency Paid Sick Leave
The emergency paid-leave provisions require employers to provide paid sick time for the following reasons:
- To enable an employee to self-isolate due to the employee’s coronavirus diagnosis;
- To enable an employee experiencing symptoms to obtain a medical diagnosis or care;
- Because a public-health official or a health-care provider has recommended or ordered the employee to remain out of work because the employee or the employee’s family member has been diagnosed or is exhibiting symptoms;
- To enable the employee to care for or assist a family member who has been diagnosed or is exhibiting symptoms;
- To enable the employee to care for his or her child if, because of the coronavirus, the school or daycare has been closed or the child-care provider is unavailable.
Coverage
Employers with more than 500 employees are exempted from the paid-leave requirement. All employees, regardless of the duration of employment or full- or part-time status, are eligible if they meet one of the above-listed reasons.
Duration of Leave
Full-time employees would be eligible for up to 80 hours of paid emergency leave. Part-time employees would be eligible to receive the number of hours worked, on average, over a two-week period. The leave would terminate immediately once the reason for the leave has ended and the employee would have to return to work for his or her next scheduled shift.
Current PTO Policies
Employers who already have paid leave policies cannot revoke that leave or “substitute it” with the newly mandated emergency leave. And employees may not be required to use their accrued but unused leave before using emergency leave.
Notice
If the bill is passed, employers would be required to post a notice of the new law with their other required postings. The Secretary of Labor would make a model notice available within seven days of the date the law is enacted.
Expanded FMLA Coverage
The Bill also provides for a significant expansion of FMLA coverage for coronavirus-related reasons, including paid leave after 14 days of unpaid leave. Employers would be required to pay eligible employees up to two-thirds of the employee’s regular pay but could seek to mitigate those costs using the tax credit provided for in the Bill.
Expanded Eligibility
The number of employers and employees who would be covered by the new provisions would expand significantly. For example, instead of having to employ at least 50 employees, all employers with less than 500 employees will be covered. Employees with less than 50 employees may be eligible for an exemption if the obligations would jeopardize the viability of the business as a going concern.
More employees would be covered, too. Currently, an employee must have worked at least 1,250 hours and at least 12 consecutive months to be eligible for FMLA leave. The Bill would expand that coverage to all employees who have been employed for at least 30 days.
The Bill also would expand the definition of “family member” and “parent.” “Family members” would be extended to include not just the employee’s spouse, son, daughter, or parent but also to the employee’s grandparent or grandchild. It also would be extended to cover the employee’s next of kin and any person for whom the employee is next of kin and who:
- Is a pregnant woman;
- Is a senior citizen;
- Is an individual with a disability; or
- Has access or functional needs.
The definition of “parent” for the purposes of coronavirus-FMLA leave would be extended to include parents of the employee’s spouse or domestic partner.
Next Steps
Employers should continue to monitor the Bill as it heads to the Senate this week. Employers also should be proactive in their preparedness efforts. For example, employers may want to:
- Consider potential ways to enable employees to telework;
- Testing of internal emergency-communication systems; and
- Review sick-leave policies.
Employers with questions regarding the rapid developments surrounding the pandemic’s impact on the country’s workforce should contact any member of Clark Hill’s Labor and Employment Practice Group.