Latest Attempt by Congress at Workplace Coronavirus Relief
Miller & Martin PLLC Alerts | March 18, 2020
Author: Stacie Caraway
UPDATE: The Senate has now approved the Families First Coronavirus Response Act. We will provide additional updates once the law is finalized.
Monday night (March 16, 2020), the House passed what it had termed “a technical amendment” to the “Families First Coronavirus Relief Act” (“the Act”), but it actually has some very substantial changes. For starters, the bill shrank from 110 pages to 90 pages (mostly eliminating various definitions which no longer are needed in light of the changes described below).
One major feature of the bill that did not change – it still only applies to employers with less than 500 employees. The most recent version of the bill includes the following changes to the Emergency FMLA Expansion and Emergency Paid Sick Leave sections of the Act.
Regarding the Emergency FMLA Expansion section
- The only purpose for the extended FMLA “public emergency” leave now is for school or paid childcare provider closures due to a public health emergency which is related to the coronavirus (not due to “any need for an employee or his/her family member to be quarantined due to exposure to or exhibiting symptoms of coronavirus” as in the prior proposed version).
- There is also a $200.00 per day/$10,000.00 total per employee cap on the total amount of paid leave an employee can use under this section of the Act (the prior version had no such cap).
- The provision in the prior version stating that employers will not be permitted to require employees to use other forms of paid leave during the (now 10 rather than 14-day) waiting period before the paid leave portion of the expanded FMLA “public emergency” leave begins also now is gone. (Employees remain free to choose to use other forms of paid leave during this (now 10-day) otherwise unpaid leave/waiting period as under the prior version.)
- The Secretary of Labor also will have the authority to exempt small businesses (who would not normally be subject to “regular FMLA leave” because they do not have at least 50 employees) from this section of the law when “the viability of the business as a going concern would be jeopardized” by having to comply with it. (The specific criteria for this exemption is not defined but presumably will be in the regulations the Secretary of Labor is authorized to issue within 15 days of when this Act ultimately is signed into law.)
Regarding the Emergency Paid Sick Leave section
- The 80 hours of paid leave (for full-time employees) section now only applies to those who are “unable to either work or telework” due to:
a. “self-quarantining due to having symptoms and who are seeking a medical diagnosis;”
b. being told to self-quarantine by a federal, state, or local order or a health care professional related to COVID-19;
c. caring for “any individual” who is in group b.;
d. school or paid childcare provider closings due to COVID-19 precautions; or
e. “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 provision regarding employers not being permitted to require employees to use other forms of leave before using this new 80 hours of paid leave remains unchanged.
- BUT the provisions which said that this new 80 hours of paid leave must be provided “in addition to” any other paid leave which is already being provided by employers and that employers are not permitted to change their paid leave policies on or after the date the Act is signed into law now are gone.
- There are also new caps on the paid sick leave benefit of $511.00 per day and $5,110.00 total per employee for use of leave by groups a. and b. above and $200.00 per day/$2,000.00 total per employee for use of leave by groups c. – e. above.
- There is also a new exception that “the employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees from this section of the Act.” The Secretary of Labor also may allow the employer of such employees to “opt out” of this section of the law altogether.
- This section also is subject to the same “small business exemption” as is described in item 4. above.
Only a few changes were made to the tax benefits section, which is summarized here with these changes included.
This is still not the end of this roller coaster ride. Again, this is NOT the final version of the law. This is just the latest version from the House. The bill now goes to the Senate.
Stay tuned and stay well!
For more information about the ongoing developments related to the COVID-19 pandemic, please visit Miller & Martin's Coronavirus Resources.