Paid Leave Bill Passed by House and Senate

The Families First Coronavirus Response Act (HR 6201) just passed Congress with bipartisan support and was signed by President Trump on March 18th. Some changes were made from the original version I reported on in my blog on Monday morning, which is available here.

Temporary FMLA Expansion – “Emergency Family and Medical Leave Expansion Act”

Congress amended the Family and Medical Leave Act (FMLA). Employees are eligible for paid FMLA for coronavirus-related childcare disruption through December 31, 2020. Here are the important temporary changes to normal FMLA criteria:

  • Employees need to be employed for at least 30 days (as opposed to 1 year).
  • It temporarily expands the “employer” definition to any employer with less than 500 employees (as opposed to 50 or more employees within 75 miles).
  • Eligible reasons for FMLA leave now include care for minor child(ren) if their school or place of care is closed or unavailable, and telework is unavailable.
  • The first 10 days of coronavirus FMLA leave are unpaid, unless the employee voluntarily elects to use available paid leave. Employees are then paid at a rate of 2/3 their regular rate for the hours that the employee would have worked (or their normal salary), up to a cap of $200 per day and a total of $10,000. (There are provisions for calculating the regular hours for employees with variable schedules.)
  • Job restoration is required after FMLA leave for employers with at least 25 employees, subject to a few exceptions.
  • A notice poster will be required and available within 7 days of passage. (I will post a link to it once it is available.)

Federal Paid Sick Leave – “Emergency Paid Sick Leave Act”

Congress also passed paid sick pay applying to employers with less than 500 employees. Employees are eligible for 80 hours (or the pro rata amount for part time employees based on their average schedule over a two-week period) of paid sick leave, provided the employee is unable to telework. There is no minimum length of employment to qualify. Sick leave is available for the following reasons, regardless of the employee’s length of employment:

  1. To comply with a federal, state, or local quarantine or isolation order related to COVID-19;
  2. To comply with advice of a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. Because the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. To care for a family member who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  5. To care for the child of the employee if the school or place of care is closed or otherwise unavailable because of COVID-19 precautions; and
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The paid leave is calculated at the employee’s regular rate of pay, up to $511 per day and $5110 in the aggregate for the employee’s own illness or quarantine (reasons 1, 2, and 3, above), and for any other qualifying reason, 2/3 of the employee’s regular rate of pay, up to $200 per day and $2000 in the aggregate . The Department of Labor can issue regulations exempting healthcare workers and emergency responders from coverage or allowing them to opt out.

What is critical for employers to understand is that this new paid sick leave must be IN ADDITION to existing paid leave. Employers are not permitted to amend their existing paid leave to avoid providing federal paid sick leave, and employers may not require employees to use other paid leave before using it.

There will be a required notice poster for this leave as well, published within 7 days. (I will link to it once it is available.)

How does this apply to your workplace?

If you have less than 500 employees: Both the new FMLA and paid sick leave apply to you. Employers with less than 50 employees can apply for an exemption if providing the leave would jeopardize the viability of the business as a going concern.

If you have 500 or more employees: None of this applies to you, but more may be coming in the coming weeks. It is unclear why large employers were left out, other than speculation that most large employers already provided paid leave.

UPDATED 3/25/20: The employee calculation uses the “integrated employer” test under the FMLA. So, however an employer calculates total employees for FMLA purposes is how an employer calculates total employees for this emergency paid leave law, except that establishments are not separately counted.

Paid sick leave will fully compensate employees earning a little over $132,000 a year for that two-week period of paid sick leave. The paid FMLA will compensate employees earning approximately $78,000 a year for the 10-week paid period. To defray the costs of the paid sick leave and the new FMLA, employers will receive a 100% tax credit (against social security tax) for all money paid for paid sick leave.

The reasons for leave are more limited than originally proposed and passed by the House over the weekend. The revised law still provides for 2 weeks of paid leave for coronavirus illness or quarantine. Family leave for care for family members with coronavirus or suspected coronavirus and for childcare related to a coronavirus-related school or daycare closure also remain in the bill but at a reduced per week rate. The roughly 60% of workers at large employers (with 500+ employees) remain left out of the protections, although most of them reportedly already have forms of paid leave. Healthcare workers necessary for fighting the coronavirus may be exempt under the law.

In addition, employees cannot be required to find their replacement, and there are non-discrimination and non-retaliation provisions under the FMLA and FLSA for each new paid leave provision. Employers violating each of these new paid leave provisions face the penalities for violations of the FMLA (for the expanded FMLA) and FLSA (for the paid sick leave), respectively.

It remains unclear what happens if a worker is laid off temporarily and then later qualifies for paid leave under the new law when it is goes into effect. It would seem that an employer could re-activate them for some portion of time and place them on paid leave then lay them off again. It also remains unclear what happens if employers advance this leave and provide it now to aid with time off until April 1. It would appear that additional leave will be required on April 1–creating a incentive to force employees onto unpaid leave / unemployment until April 1.

This law takes effect on April 1.

Temperature Checks and Medical Inquiries of Employees and Applicants

Most employees are working from home (if that is an option) by now. Ordinarily, employers may not check employees for illness. For example, requiring employees to submit to temperature checks would be considered a prohibited “medical examination” under the Americans with Disabilities Act (ADA). However, given the global pandemic and local spread to most areas, temperature checks are permitted. Employers may also ask employees if they are experiencing fever, chills, cough, shortness of breath, or sore throat. In addition, in Ohio, Governor Mike DeWine advised all employers in his daily press conference on March 18, 2020 to take the temperature of employees at the start of work for those employees who are still required to report to work in person. Of note, however, not all employees infected with COVID-19 have a fever. Updated EEOC guidance is available here.

Employers are permitted to reject applicants (after making an offer of employment) for COVID-19 related symptoms, as long as the rule is uniformly followed.

Government Closures and Effect on Deadlines

The Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB), and Ohio Civil Rights Commission (OCRC) have closed all offices. In person filings are no longer permitted. Where deadlines are an issue, online submission is encouraged, and for charge filings, telephone interviews will take the place of in-person intake. Thus far, extensions of the 180/300 day requirements for charges are not being granted.

I will continue to keep you updated as this situation rapidly changed.

UPDATED 4/2/20: Employees who have already exhausted FMLA, may still take the full 10 weeks of COVID-19 FMLA; however, COVID-10 FMLA will count against future regular FMLA.

Employers may force employees taking 10 weeks of COVID-19 FMLA to supplement the 1/3 of unpaid time with available paid time off, until employer-provided paid time off is exhausted.

Intermittent leave may be permitted by employers (but is not required) for remote work to care for an employee or because of lack of childcare. Intermittent leave for work in the office is not permitted (but is not required), except due to lack of childcare.

Self-quarantine sick leave is not available if the employee decides not to work due to fear of contracting the coronavirus. Compliance with a state shelter-in-place or stay-at-home order is sufficient to take paid leave, unless the employee has been designated as essential to an essential business.