The U.S. Senate just approved the House coronavirus aid bill and it’s ready for Trump’s signature.
Earlier this week, the U.S. House of Representatives passed the emergency Families First Coronavirus Response Act (H.R. 6201)(“FFCRA”), in response to the novel coronavirus (COVID-19) pandemic. This bill supports efforts to provide relief and increase public health measures with eight provisions intended to assist people during the public health emergency caused by coronavirus.
We focus on two of the eight provisions which includes expanding the existing Paid Sick Leave Act and the Family and Medical Leave Act. Specifically, Division C – the Emergency Family and Medical Leave Expansion Act and Division E – the Emergency Paid Sick Leave Act of the FFCRA.
To summarize, this will now require certain private employers to provide paid leave to employees who cannot work because of coronavirus and/or the public health emergency surrounding it. More specifically, the FFCRA will: i. expand the existing family and medical leave program to require protected paid leave for workers. Under current law, employers are required to give up to 12 weeks of job protected medical leave, but they are not required to provide any pay during that time; ii. add, via the Emergency Paid Sick Leave Act, two “stacked” weeks of additional paid sick leave (added to whatever other sick leave an eligible employee might already have); and iii. will provide several other benefits and a variety of other relief resources including free coronavirus testing; enhanced unemployment insurance benefits; expanded food security benefits; and increased Medicaid funding.
DIVISION E – EMERGENCY PAID SICK LEAVE ACT (EPSLA)
This Emergency Paid Sick Leave Act (EPSLA) requires certain employers to provide an additional two weeks of paid sick leave. The employer must pay the employee their regular rate of pay unless the leave is used for the care of family members, then the rate of pay is two-thirds of the employee’s regular rate of pay. For part-time employees whose schedule varies the employee will be entitled to the average rate of pay over the last 6-month period. This EPSLA would apply to private small and midsize companies that employ fewer than 500 employees and public employers that employ 1 or more employees.
Eligible employees will be able:
- To self-isolate because the employee is diagnosed with Coronavirus/COVID-19.
- To obtain a medical diagnosis or care if such employee is experiencing the symptoms of Coronavirus/COVID-19.
- To 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 on the job would jeopardize the health of others because of exposure or symptoms of Covid-19.
- To care for the child of such employee if the school or place of care has been closed, or the childcare provider of such child is unavailable, due to coronavirus.
- To care for or assist a family member of the employee:
- who is self-isolating because such family member has been diagnosed with coronavirus; or
- is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care.
Are there any exemptions?
If it “would jeopardize the viability of the business,” the labor department can exempt employers with fewer than 50 workers from having to pay these benefits. Health care providers like hospitals and nursing homes also have the ability to be exempt.
Do Government Employers have to provide paid sick and family leave?
Yes – the bill says all government employers must provide these benefits to workers. The same is also true for any union workers who are part of a “multi-employer” agreement.
What about “Gig” workers and self-employed workers?
This seems to be one of the most innovative parts of the House bill. People who are self-employed but work for another employer, such as Uber or Lyft drivers, caterers or planners for major concerts or events— are eligible for a tax credit of up to two weeks of sick pay at their average pay and 12 weeks of family leave pay at two-thirds their normal rate.
Do you have to have to have tested positive to get the benefit?
The two weeks of paid sick leave apply to anyone told to quarantine, showing symptoms, exposed to the virus or trying to get a test or preventive care. That is a broad definition. The IRS will probably have to come up with an exact rule, but it is clear Congress wants to avoid a situation in which everyone is trying to get a doctor’s note to qualify.
When is the effective date and how long will the benefits last?
This will take effect no later than 15 days after the date of the bill’s enactment and covers coronavirus-related sick leave until December 31, 2020.
Are part time workers covered?
The bill says part-time employees also get paid sick leave equivalent to the number of hours they typically work during a two-week period.
Who pays for the sick time or leave?
Employers must pay these benefits. There are provisions in the bill that provide tax credits to employers in certain circumstances and with certain caps.
What about current existing paid leave policies?
Employers may not require employees to exhaust their current sick leave before using leave under the new bill. Furthermore, if the Emergency Paid Sick Leave Act is enacted as written, employers cannot change their existing paid leave policies, like vacation or paid time off (PTO). The paid leave provided under the Emergency Paid Sick Leave Act would be provided in addition to the paid leave provided by employers as of the day before enactment of the bill.
DIVISION C: EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (EFMLEA)
The Families First Coronavirus Response Act also adds, through a new statutory basis for leave under the Family Medical Leave Act (FMLA) applicable to eligible employees who need leave due to various circumstances relating to coronavirus and the public health emergency that has arisen.
Who is covered?
This provision applies to employers with less 500 employees. The EFMLEA expands coverage to all employees that have been employed for at least 30 calendar days.
How can it be used?
Employees may use the leave for following reasons:
- To comply with a requirement or recommendation to quarantine because the employee was exposed to or has symptoms of coronavirus; or
- The Employee must care for a family member that has received a recommendation to quarantine because they have been exposed to COVID-19 or have symptoms of COVID-19; or
- The employee must care for a minor child because of school/childcare closure or if the provider is unable because of coronavirus.
Paid and unpaid leave. EFMLEA expands the COVID-19 related leave to provide paid and unpaid leave. Unpaid leave related to COVID-19 is now available for the first 14 days of such leave. During this time, the employee can choose to substitute the first 14 days of unpaid leave with their accrued vacation, personal leave, or medical/sick leave.
Employers must provide paid leave for each day after the initial 14-day period at the regular rate of pay as defined by the Fair Labor Standards Act and based on the number of hours the employee would normally work.
Is the employee’s job protected?
This leave is job-protected therefore the employer must allow the employee to return to employment in the same or equivalent position.
This aid package is the second emergency bill that Congress has passed in recent weeks. Last week, the Senate approved a $8.3 billion House-passed measure that focused on vaccine research and development. With the passage of this second emergency bill, they are now turning their attention to what they are calling the third phase of the coronavirus response: a spending proposal from the White House that would include direct payments to Americans.
The McHattie Law Firm continues to follow COVID-19 developments as they impact the workplace and will provide frequent updates on those developments. For assistance addressing issues in your workplace, feel free to contact us.
This blog is for informational purposes only. It does not constitute legal advice and may not be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.
Resources: https://www.natlawreview.com/article/family-first-coronavirus-response-act-what-employers-need-to-know https://www.forbes.com/sites/tomspiggle/2020/03/17/the-families-first-coronavirus-response-act-what-it-does-for-employees-who-need-paid-sick-leave/#235731c96f1a https://www.politico.com/newsletters/morning-shift/2020/03/16/what-the-coronavirus-bill-means-for-employers-and-workers-786103