On March 14, 2020, the U.S. House of Representatives overwhelmingly passed H.R. 6201, also known as the Family First Coronavirus Response Act (the “Family First Act”), in an effort to provide emergency relief and support during the 2019 Novel Coronavirus (also referred to as COVID-19, but more commonly known simply as the “Coronavirus”) pandemic. The Senate is expected to consider the Family First Act next week and President Trump and Majority Leader Mitch McConnell (R-KY) both issued statements indicating support for the relief measure.
While it is still possible that certain provisions of the bill may change before enactment, in the meantime, there are three sections of the proposed Family First Act that employers should begin to consider: the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act, and Tax Credits for Paid Sick and Paid Family and Medical Leave.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act would amend the federal Family and Medical Leave Act (“FMLA”) to provide a new type of covered public health emergency leave. Beginning on the date the Act takes effect through December 31, 2020, eligible employees would be able to take up to 12 weeks of FMLA leave for a qualifying need related to a public health emergency, including:
- to comply with a recommendation or order by a public official or health care provider that the employee remain out of work because of (i) exposure of the employee to Coronavirus, or (ii) the employee exhibits symptoms of Coronavirus (where the employee is otherwise unable to comply with the recommendation/order and perform the functions of their role);
- to care for a family member whose presence in the community, as determined by a public health official or a health care provider, would jeopardize the community’s health; and
- to care for the employee’s child, if the child’s school or care provider is closed or unavailable due to a public health emergency.
For purposes of these provisions, a family member includes (i) an employee’s parent, spouse, and son or daughter under the age of 18, as well as (ii) pregnant women, senior citizens, and individuals with disabilities or access or functional needs who are also either the employee’s son or daughter, next of kin, grandparent or grandchild, or for whom the employee is their next of kin.
Notably, private employers with fewer than 500 employees would be required to provide this leave while larger private employers would be exempt. Public employers would not be subject to the 500 employee rule and would be covered in the same manner as with regard to the existing FMLA provisions. To be eligible, employees must be employed for at least 30 calendar days (as opposed to the eligibility criteria typically applicable under the FMLA, which requires that employees be employed for at least 12 months). The Secretary of Labor would have the authority to exclude certain health care providers and emergency responders from coverage, as well as certain employers with fewer than 50 employees if imposing such requirements would jeopardize the viability of such employer’s business. Because public health emergency leave would be a new category of leave added to the already existing categories of leave under the FMLA (including, for example, due to the employee’s serious health condition), the total period of time available for FMLA leave applies – i.e., 12 weeks over a 12 month period.
The first 14 days of this leave may be unpaid but employees can elect to substitute accrued paid leave during this time, including up to two weeks of paid sick leave pursuant to the Emergency Paid Sick Leave Act (discussed below). After the first 14 day period of public health emergency leave under the FMLA, employers must provide paid leave in an amount not less than two-thirds of an employee’s regular rate of pay.
While the FMLA generally requires employers to restore covered employees to the job they had before they took leave, employers with fewer than 25 employees would not be required to comply with the FMLA’s job restoration requirements in connection with the new covered reasons for leave if the following conditions are met:
- An employee takes public health emergency leave;
- The employee’s position when they begin leave does not exist due to economic conditions or other changes in the employer’s operating conditions that (1) affect employment and (2) are caused by a public health emergency during the leave period; and
- The employer makes reasonable efforts to restore the employee to a position equivalent to one they held when leave began (i.e., equivalent benefits, pay, terms and conditions of employment).
If reinstatement is not required because the above conditions are met, an employer would be required to make reasonable efforts to contact the employee if an equivalent position becomes available during the one year period beginning on the earlier of (i) the date on which the qualifying need related to public health emergency concludes, or (ii) the date that is 12 weeks after the date on which the employee’s public health emergency leave commences.
If enacted, the Emergency Family and Medical Leave Expansion Act would take effect no later than 15 days after the enactment of the Family First Act.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act, which would in most cases operate in tandem with the Emergency Family and Medical Leave Expansion Act discussed above, would require private employers with fewer than 500 employees, as well as certain public employers as defined in the bill, to provide up to two weeks of paid sick leave to all employees for certain covered purposes related to the Coronavirus outbreak (discussed further below).
Specifically, the law would provide full-time employees with up to 80 hours of paid leave and part-time employees with a number of hours that would equal the hours that such employee works over a 2-week period. If enacted, this bill would allow employees to immediately use such leave, regardless of how long they have been employed by the employer.
If employees use emergency paid sick leave (i) to self-isolate due to a Coronavirus diagnosis, (ii) to obtain medical care for Coronavirus symptoms, or (iii) to comply with a recommendation or order to quarantine due to exposure to, or symptoms of, the Coronavirus, employers must pay the employee their full salary during the period of leave, based on their regular rate of pay (as defined under the federal Fair Labor Standards Act (FLSA)). If employees use emergency paid sick leave (i) to care for a family member who has or is experiencing Coronavirus-related symptoms or who is under quarantine by a public health official or health care provider, or (ii) to care for their child whose school or child care provider is closed or unavailable due to Coronavirus, employers must provide pay at least two-thirds of the employee’s salary during such leave period.
A family member for purposes of emergency paid sick leave includes (i) an employee’s parent, spouse, and son or daughter (with no stated age limitation), as well as (ii) pregnant women, senior citizens, and individuals with disabilities or access or functional needs who are also either the employee’s sibling, next of kin, grandparent or grandchild, or for whom the employee is their next of kin.
Employers with existing paid leave policies should note that the paid sick time provided by this Emergency Paid Sick Leave Act would be made available in addition to their own policy’s (or collective bargaining agreement’s) paid leave. Employers would be prohibited from changing their existing leave policy to avoid this new requirement, and would also be required to post a notice regarding employee’s rights under the law (a model notice will be made available for this purpose).
If enacted, the Emergency Paid Sick Leave Act would take effect no later than 15 days after the enactment of the Family First Act, and would expire on December 31, 2020.
Tax Credits for Paid Sick and Paid Family and Medical Leave
Covered employers (i.e., private employers with fewer than 500 employees) would be provided payroll tax credits to cover the wages paid to employees under the sick leave and family medical leave programs described above. For a more comprehensive discussion of the tax credits provided for sick and family leave payments, please refer to our Tax Talks blog post.
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We will continue to monitor this evolving situation and report back on key developments as they occur. You can also read more about our guidance to employers about Coronavirus in the Workplace on our blog post, which is updated frequently.
Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.