Proposed COVID-19 Bill Has Major Implications for Employers
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WHAT: On March 16, 2020, the U.S. House of Representatives passed a revised version of the H.R. 6201, Families First Coronavirus Response Act (H.R. 6201 or the Bill). While the U.S. Senate has not weighed in, employers should be aware of the provisions within the Bill that would require them to change their policies with regards to coverage under the Family and Medical Leave Act (FMLA) and expanding the requirements to provide paid sick leave.
WHEN: The House originally passed H.R. 6201 on March 14, 2020, but then changed a number of the provisions, citing the need to make “technical corrections.” The revised Bill was then voted on and passed on Monday, March 16, 2020. The Bill now heads for the Senate.
WHAT DOES IT MEAN FOR INDUSTRY: As written, the Bill requires employers with under 500 employees expand their coverage of paid leave to employees who are affected by COVID-19 either under FMLA or in the form of sick leave. These requirements will be in place until December 31, 2020. The following are major highlights of the Bill, but there are additional requirements that may affect certain businesses and the provisions may change as the Bill makes its way through the Senate. Nonetheless, all employers are advised to consult with counsel before the law goes into effect.
Family and Medical Leave: The Bill requires that employers give paid FMLA leave for a “qualifying need related to a public health emergency” which is defined as when an employee is unable to work or telework due to the need to care for a dependent whose school or place of care has been closed due to COVID-19.
Employers must pay employees who have elected to take this protected “emergency” leave an amount equal to two-thirds of the employee’s average pay rate. The first ten (10) days for which an employee takes the “emergency” FMLA leave may consist of unpaid leave, but an employee may choose to use any accrued regular leave during that time or the newly mandated emergency sick leave (described below). The employer must then provide paid leave for remainder of emergency FMLA leave (up to ten (10) weeks) with a cap of $200 per day. Employees that have been with the company for at least thirty (30) days would be eligible for this program.
Emergency Sick Leave: The Bill also establishes a new sick leave program that requires employers to immediately grant paid sick leave to any employee, regardless of tenure with the company, who is unable to work or telework due to one of the following:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised to self-quarantine; or
- The employee is unable to work or telework due to the need to care for a dependent whose school or place of care has been closed due to COVID-19.
Full-time employees would be entitled to 80 hours of sick leave; part-time employees are entitled to the number of hours that they work on average over a two-week period. Additionally, the Bill contains provisions that would prohibit retaliation against an employee who chooses to use the Sick Leave and employers are prohibited from requiring employees to use existing leave or paid time off. Under these requirements, companies with fewer than 500 employees will have to pay sick leave at either the usual pay rate if the individual is quarantining, diagnosed, or seeking preventative care; or at two-thirds the usual pay rate if the leave is taken to care for a family member or a dependent whose school has closed.
Again, the Bill has not yet been signed into law, but it is currently receiving widespread support and the Senate is expected to act sometime this week. There are also additional provisions that would allow some leniency for small businesses, i.e. those with fewer than fifty (50) employees. Employers must stay apprised of how this legislation is unfolding and be prepared for the eventuality that these, or similar provisions, come into effect in the coming weeks. There will be many hurdles to overcome for both employers and employees as the full repercussions of COVID-19 continue to unfold. Given how quickly the Bill has been drafted, and the multiple federal laws and employee policies that come into play, this is truly one of those situations where consulting legal counsel in the days ahead is going to be critical.