Final Changes to Coronavirus Relief Act, Paid Leave

Yesterday, the House of Representatives scaled back the paid-leave portion of the Families First Coronavirus Response Act that it attempted to enact days earlier following pressure from businesses worried about financial burdens of extended FMLA. The revised bill was sent to the Senate on Wednesday, where it passed by a vote of 90-8. President Trump then signed the emergency bill into law. The bill goes into effect on April 2, 2020, and it sunsets on December 31, 2020.

The new measure still provides two weeks of sick leave to employees affected by COVID 19, including those who are in quarantine or caring for family members who have it, and those who have children whose schools or daycare centers have closed in response to the outbreak.

Here’s what’s changed:

For the next 10 weeks (following the 2 mentioned above), paid leave would be limited only to employees caring for a child whose school or daycare had been closed. Employees who had been in quarantine or caring for a family member affected by the virus wouldn’t be eligible for the additional 10 weeks of leave. Health-care providers and emergency responders aren’t guaranteed the additional 10 weeks of paid leave either. The decision to extend their time off will be made by the Labor secretary at a later date, the reason given that the government might face a shortage of such workers.

The legislation also makes coronavirus testing free and increases access to food assistance to those who need it.

The new mandate still applies only to companies with fewer than 500 employees and sets up a mechanism for the government to reimburse through a tax credit employers who pay employee wages while they are absent from work due to coronavirus. Two notes about this provision:

1. The bill amends the FMLA to allow employees to take up to 12 weeks of job-protected leave if the employee is unable to work or work remotely because they need to care for a child under the age of 18 because the child’s school or daycare has closed due to COVID-19. The first 10 days of such leave is “emergency FMLA” and may consist of unpaid leave, but the employee must be paid for every day thereafter. That payment would be calculated based on the number of hours the employee would normally be scheduled to work, not less than two-thirds the employee's regular rate of pay. The bill provides that this amount will not exceed $200 per day and $10,000 "in the aggregate."
   
   Employers with fewer than 25 employees may be exempted from this job-protected aspect of the “emergency FMLA” leave provided certain conditions are met, including if a leave-taking employee's position is eliminated due to "economic conditions" or other changes that affect the employer's operations resulting from the public health emergency.
   
   The bill allows the Secretary of Labor to exempt employers with fewer than 50 employees from the “emergency FMLA” leave requirement "when the imposition of such requirements would jeopardize the viability of the business as a going concern."
2. The bill mandates that employers with fewer than 500 employees provide paid sick time to employees when those employees are sick with or have been quarantined due to COVID-19, are experiencing symptoms of the disease and seeking medical attention, or are caring for a child/children because of school or daycare closures due to COVID-19, among other situations. Full-time employees are entitled to 80 hours of such leave; part-time employees are entitled to time equal to the number of hours they work on average over a two-week period. The leave doesn't carry over from one year to the next.
   
   Note that an employer, as a condition of providing paid sick time, cannot require that an employee search for or find a replacement to cover for the hours during which the employee is using the paid sick time. The payment is calculated based on the employee's "required compensation" (i.e. the employee's regular rate of pay or minimum wage, whichever is greater) and the number of hours the employee would otherwise be scheduled to work. Pay standards differ in certain situations, such as if an employee is using the time to care for a family member.

   The Secretary of Labor can also exempt small businesses with fewer than 50 employees from the paid sick leave requirement.

   In the original version, all employees who received paid sick time would have been eligible for the additional 10 weeks of paid leave at two-thirds pay. That version of the bill passed Saturday morning, 3/14/20. 

Nearly all lawmakers acknowledge that a third bill will be needed to combat the anticipated economic downturn and the impact on businesses that have been forced to close in major cities nationwide. We’ll keep you posted as changes occur, but we invite you to reach out at any point for guidance on how to navigate your business through these unique times.