The Families First Coronavirus Act (H.R. 6201) was passed by the U.S. House of Representatives on March 14, 2020. The bill will be taken up by the U.S. Senate and is expected to be voted on this week.
It is recommended that employers hold off on enacting individual policies to address coronavirus-related leave until the future of this bill is certain. It is expected that the Senate may make some changes to the bill, although President Trump endorsed the current version of the bill by tweet on March 13, 2020.
Below is a summary of the two most important provisions to employers: (1) creating new FMLA entitlements and (2) requiring 80 additional hours (2 weeks) of sick leave.
- As currently written, the sick leave and FMLA provisions only apply to employers with fewer than 500 employees. Large employers are exempt
- The bill is drafted to take effect 15 days after its enactment and would remain in place until the end of 2020.
Emergency FMLA Expansion Act (Division C of the bill)
The bill establishes new FMLA entitlements to employees who have been employed for 30 calendar days. The current law, which limits FMLA to employees who have been with the employer for a year, worked for 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius, would not apply to this new entitlement.
Under this new FMLA entitlement, employers with fewer than 500 employees (“covered employers”) must allow 12 weeks of FMLA leave for employees who have been employed for 30 days.
The first two weeks can be unpaid, although employees may elect to use other paid benefits during this time. The remaining leave must be paid at 2/3 the employee’s regular rate. Leave under this additional entitlement is limited to the following reasons:
- To comply with a recommendation or order by a health authority or a health care provider that the physical presence of the employee on the job would jeopardize the health of others because of the (a) exposure of the employee to coronavirus, or (b) exhibition of symptoms of Coronavirus/COVID-19 by the employee, and the employee is unable to both perform the functions of the job and comply with the recommendation or order.
- To care for a family member of an eligible employee, where a health authority or a healthcare provider makes a determination that the presence of the family member in the community would jeopardize the health of others in the community because of the (a) exposure of the family member to Coronavirus/COVID-19 or (b) exhibition of symptoms of Coronavirus/COVID-19 by the family member.
- To care for a child of the employee who is under 18 years old if the elementary or secondary school or place of care has been closed, or the childcare provider of the child is unavailable, due to a public health emergency.
The FMLA requirement for job restoration upon return from leave does not apply to an employer with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by the public health crisis during the period of leave. However, the employer must make reasonable efforts to restore the employee to the same or an equivalent position, and, if the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period.
New Paid Sick Leave (Division E of the bill)
In addition to the pay required under the expanded FMLA entitlement (discussed above), covered employers (those with fewer than 500 employees) will be required to immediately provide employees with up to 80 hours of paid sick leave (or the equivalent of two weeks of hours for part-time employees). Such paid leave must be provided where:
- An employee, or a family member with whom the employee cares for, requires leave to:
- self-isolate because the employee/family member is diagnosed with Coronavirus/COVID-19.
- obtain a medical diagnosis or care if such employee/family member is experiencing the symptoms of Coronavirus/COVID-19.
- comply with a recommendation or order by a public official with jurisdiction or a healthcare provider on the basis that the physical presence of the employee/family member in the community would jeopardize the health of others because of:
- the exposure of the employee/family member to Coronavirus/COVID-19; or
- exhibition of symptoms of Coronavirus/COVID-19 by the employee/family member.
- The employee requires leave to care for the employee’s child if the school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.
Pay under this provision is reduced to 2/3 of an employee’s regular rate of pay when the leave is to care for a family member (in the above examples) or to care for a child during a school closure.
The paid sick leave required under the bill must be provided in addition to whatever the employer already provides, and must be made available for immediate use by the employee, regardless of how long the employee has been employed.
Employers must pay these benefits, but there are provisions in the bill that provide tax credits to employers in certain circumstances.