Federal Law Alert - Special March 2020 Edition - Families First Coronavirus Response Act

Families First Coronavirus Response Act: What We Know So Far

HR 6201, also known as the Families First Coronavirus Response Act, was passed by the House of Representatives on March 13 and may soon become law. The bill, however, must still be considered by the Senate, which may make additional changes, and signed by the president. Because the bill is still in the legislative process, we do not know what the final version will look like.

At present, the act is a very short, quickly written bill, and most of the questions about how to execute or implement these requirements will be clarified over time by lawmakers and federal agencies. We will post new information as it becomes available and as we have had time to review it. Below are the main points of what employers need to know about the bill in its early form.

Summary

If this act passes and is enacted, employees will be eligible for two weeks of sick leave (full pay for self, 2/3 pay for family care) and use of 12 weeks of Family and Medical Leave Act (FMLA) leave (two weeks unpaid and then up to 10 weeks at 2/3 pay) for several circumstances related to COVID-19.

Effective Date of Law

• Legislation indicates that it would be effective not more than 15 days after enacted and would expire December 31, 2020.
• Currently the bill as written does not appear to have any retroactive application.

Key Elements for Employers

• FMLA expansion
• Paid sick leave
• Payroll tax credit (we think the idea is that the employer will not have to pay payroll taxes on amounts paid out for paid sick leave and expanded FMLA, subject to lots of limits, but this is a best guess)

Emergency FMLA Expansion

• Covered Employers: Employers with fewer than 500 employees are covered.
• Covered Employees: Any employee who has been employed for at least 30 calendar days.
• Covered Leave Purposes:
  • To adhere to a requirement or recommendation by a public health official or health care provider to quarantine due to exposure to or symptoms of coronavirus;
  • To care for an at-risk family member who is complying with a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus; and
  • To care for a child under 18 of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency, defined as an emergency with respect to the coronavirus declared by a federal, state, or local authority.
• Duration:
  • Up to 12 weeks of job-protected leave.
• Compensation:
  • No pay for first 14 days of leave (employee can, but is not required, to use any other leave available to them, including the emergency sick leave discussed below).
    • Employers may not require employees to use paid leave during this period.
  • After 14 days, employers must pay two thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work.
• Reinstatement to Position after Leave:
  • The same reinstatement provisions apply as apply under the traditional FMLA. However, restoration to position does not apply to employers with fewer than 25 employees if certain conditions are met:
    • The job no longer exists because of changes affecting employment caused by an economic downturn or other operating conditions that affect employment caused by a public health emergency, subject to the following conditions:
      • The employer makes reasonable efforts to return the employee to an equivalent position, and
      • The employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.

Note: Employers covered here but not by the rest of the FMLA (i.e. those with fewer than 50 employees) are not subject to civil action by employees (only action by the Secretary of Labor). The bill reserves the right for the secretary to exclude certain care providers and first responders from the list of “eligible employees” and exempt small businesses with fewer than 50 employees if business viability was jeopardized.

Emergency Paid Sick Leave

• Covered Employers: Employers with fewer than 500 employees.
• Covered Employees: All employees (no matter how long they have been employed)
• Covered Leave Purposes:
  • To quarantine, seek a diagnosis, or get preventative care for coronavirus;
  • When a public official or healthcare provider says physical presence would jeopardize others;
  • To care for family member with exposure or symptoms who public official or healthcare provider says cannot be out in community; or
  • To care for a child under 18 if school or place of care is closed due to coronavirus.

Duration of Leave:

• Full time employees are entitled to 80 hours of paid sick leave.
• Part time employees are entitled to sick leave equal to the amount of hours worked on average over a typical two-week period.

Rate of Pay:

• Sick leave must be paid at the employee’s regular rate of pay for leave used for the employee’s own illness, quarantine, or care.
• Sick leave must be paid at two-thirds of the employee’s regular rate if taken to care for a family member or to care for a child whose school has closed, or if the employee’s childcare provider is unavailable due to the coronavirus.

Interaction with Other Employer-Provided Paid Sick Leave and other Paid Leave:

• This leave must be provided in addition to other sick leave the employer provides, and employers may not change their existing leave policies to avoid responsibilities under the bill.
• This bill does not pre-empt existing state and local paid sick leave requirements.
• Employers cannot require employees to use other leave first.
• Sick leave provided for under the bill does not carry over from year to year, and the requirements expire December 31, 2020.

Notice Requirements:

• Employers must post a model notice to be provided by the federal government.

Read US H.R. 6201