By Clay Creps and Christopher Morehead
On March 14, 2020, the U.S. House of Representatives passed the first version of HR 6201 (the “Families First Act”), an emergency relief bill with paid FMLA and paid sick leave benefits for employees experiencing employment loss due to the COVID-19 pandemic. The House modified the proposed legislation significantly on March 16, 2020, most notably by removing paid FMLA leave provisions for employees who miss work due to their own, or their family members’, exposure to or symptoms of COVID-19. On March 18, 2020, the Senate passed HR 6201 by a 90-8 vote. President Trump signed the law into enactment later that day and it goes into effect no later than April 2, 2020.
Key provisions that are of direct interest to employers follow:
Covered Employers
The law applies to private employers with fewer than 500 employees, and covered public sector employees. The law sunsets on December 31, 2020.
Emergency Medical Leave
Qualifying reason for medical leave: An employee needs to have a “qualifying need” for emergency FMLA, which is limited to situations where an employee is unable to work or telework due to the need to care for a child if the child’s place of care or school is closed, or the child care provider is unavailable due to a public health emergency. To be eligible, employees must have been on payroll for at least 30 days.
Paid and Unpaid Emergency Family Leave: If the employee is qualified, the first 10 days (as opposed to 14 days) are unpaid. Thereafter, the employee must generally be paid 2/3’s of the employee’s regular rate for the number of hours the employee would otherwise be scheduled to work. The new legislation would cap these payments at $200 per day and $10,000 in total.
Job Protection: Employees who take emergency FMLA leave have the customary job protection, requiring employers to reinstate them to their prior, or equivalent, position once their leave expires. However, there are some exceptions for employers with less than 25 employees who have to eliminate the employee’s position due to the economic impact of COVID-19. In that situation, employers must make reasonable efforts to return the employee to an equivalent position and try to return the employee to work for up to a year following the employee’s leave.
Small Employers May Be Exempt from Damages: There is language that would potentially exempt small employers (fewer than 50 employees) if compliance would jeopardize the viability of the business.
Emergency Paid Sick Leave: Unlike the emergency medical leave portion of the legislation, employees are immediately eligible for paid sick leave. The amount of sick leave available to each employee depends on whether they are full or part-time (80 hours for full time employees, and the typical number of hours the employee is scheduled to work during a two-week period for part-time employees).
Qualifying Reasons:
- 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 because of COVID-19;
- the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- the employee is caring for an individual subject to or advised to quarantine or isolation;
- the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
- the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Designation of Existing Paid Sick Leave: Employees may elect to substitute any accrued vacation leave, personal leave, or other paid sick leave during the ten-day waiting period before they become eligible for paid FMLA leave. Note, though, that employers should not force employees to do so.
Exemptions for Health Care Providers and Emergency Responders: Covered employers that are health care providers or emergency responders are exempt from the paid sick leave requirement.
Caps on Sick Leave: There are daily caps on paid leave. If sick leave is taken for reasons (1), (2), or (3) above, the paid sick leave must be paid at their regular rate of pay subject to a daily cap at $511 per day ($5,110 in the aggregate). If leave is taken for reasons (4), (5), or (6), the paid sick leave can be paid at 2/3’s of the employee’s regular rate of pay subject to a daily cap at $200 per day ($2,000 in the aggregate). The paid sick leave will not carry over to 2021.
Prohibited Conduct: The legislation treats the failure to pay required sick leave as a failure to pay minimum wage under the Fair Labor Standards Act. Employers are also prohibited from retaliating against employees who use emergency leave.
UPDATE: On April 2, we published DOL Announces Temporary Rules for FFCRA which provides updated information on this topic.
If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.
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