The U.S. House of Representatives has Amended the Families First Coronavirus Response Act. The revisions, which significantly alter the bill, are outlined below. One might wager that the legislation is likely to be amended again — but the casinos are closed.
Emergency Family and Medical Leave Expansion Act
“Qualifying need related to a public health emergency” is revised to mean leave for an employee to care for an employee’s son or daughter under 18 years of age if the child’s school or child care provider is closed or unavailable because of a public health emergency (“an emergency with respect to coronavirus declared by a Federal, State, or local authority”). The FMLA-related sections of the bill no longer apply to leave for an employee’s treatment or risk of exposing others, or to care for a family member who has been exposed or is exhibiting symptoms.
Notably, the first 10 days of emergency leave may be unpaid. As before, an employee may voluntarily use accrued paid leave. After the first 10 days, employers must “provide paid leave for each day of [emergency] leave that an employee takes after taking leave under such section for 10 days.” The paid leave must be at least two-thirds of an employee’s regular rate of pay under the FLSA and must be for the number of hours an employee would normally work.
The amendments add a $200 per day cap and $10,000 aggregate cap for paid leave. Public emergency leave would generally be paid at two-thirds an employee’s regular rate of pay.
The legislation also explains how to calculate leave for employees who work an irregular schedule:
- if an employer is unable to determine with certainty the number of hours an employee would work, the calculation is the average number of hours the employee was scheduled per day over the 6 month period ending on the date the employee takes leave, including leave hours
- if an employee did not work for 6 months, use the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work
The job restoration provision is unaltered (so far). Job restoration is required unless, for employers with fewer than 25 employees:
- the employee takes leave
- the employee’s position when leave commenced does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency during the period of leave
- the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when leave commenced, with equivalent benefits, pay, and other terms and conditions of employment
- if reasonable efforts fail, the employer must make reasonable efforts to contact the employee if an equivalent position becomes available, for
- 1 year period beginning earlier of the date on which the need concludes or 12 weeks after the date on which the employee’s leave commences
Employers of health care providers and emergency responders may choose to exclude health care providers and emergency responders from the leave provisions
The legislation — for the FMLA-related provisions — exempts employers with fewer than 50 employees in a 75-mile radius from FMLA-related civil damages.
Much of the legislation is unchanged. For example:
- Employees who have been employed for at least 30 calendar days prior to requesting emergency leave are eligible for emergency leave
- The threshold for employer coverage is “fewer than 500 employees”
- The Secretary of Labor may issue regulations
- excluding certain health care providers and emergency responders from the definition of eligible employee
- exempting small businesses with fewer than 50 employees from 102(a)(1)(F) when the imposition of such requirements would jeopardize the viability of the business as a going concern
Emergency Paid Sick Leave Act
The House has amended the reasons for which employers must provide paid sick leave to employees. If passed, employers would be required to pay employees unable to work or telework because:
- the employee is subject to a federal, state, or local quarantine or isolation related to coronavirus
- the employee has been advised by a health care provider to self-quarantine due to coronavirus concerns
- the employee is experience coronavirus symptoms and is seeking medical diagnosis
- the employee is caring for an individual who is subject to an quarantine/isolation order or has been advised to self-quarantine
- the employee is caring for a son or daughter if the school or place of care is closed or the child care provider is unavailable
- the employee is experiencing “any other substantially similar condition specified” by certain federal officials
- a health care provider and/or emergency services employer may elect to exclude such employee from the paid sick leave provisions
As before, the paid sick leave hours for full time employees is 80 hours, while the paid sick leave for part-time employee is based on the employee’s average hours over a two- week period.
Paid sick leave does not carry over from year to year and ends beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick leave.
A notable change from the prior iteration of the legislation is that paid sick leave is capped at $511 per day and $5,110 in the aggregate if used because of a quarantine or isolation situation, or because the employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis (the first three reasons above) and $200 per day ($2,000 aggregate) for the latter three reasons (generally caring for others).
- The Emergency Paid Sick Leave is in addition to existing paid leave policies
- Employers may not modify existing policies in order to avoid providing additional leave
- Employers may not require employees to use other paid leave before using Emergency Paid Sick Leave
- Employers may not require employees to search for or find a replacement to cover the leave time
- No minimum employment period threshold for eligibility
- Employers must post a notice, to be developed or approved the Secretary of Labor
- No retaliation for use of leave or because of a complaint or participation in a proceeding related to the Emergency Paid Sick Leave Act
The leave must be paid at an employee’s regular rate and may not be less than the minimum wage. However, if the leave is to care for an employee’s family member, the rate must be two-thirds of the regular rate.