On March 16, 2020, the U.S. House of Representatives passed “corrections” to House Bill No. 6201, the Families First Coronavirus Response Act (“FFCRA”). The new version of the bill will come as a relief to many employers because it removes or restricts many of the paid leave provisions established in the original bill. Like the original bill, the revised bill takes effect no later than 15 days after the bill is signed into law by the President.
1. Changes to the Emergency Family and Medical Leave Expansion Act
Division C of the revised bill, known as the Emergency Family and Medical Leave Expansions Act (“EFMLEA”) allows employees to use part or all of the 12 weeks of federally guaranteed FMLA leave for coronavirus-related illness or care through December 31, 2020. The revised bill, however, makes several changes to the EFMLEA provisions of the original bill to limit who can use paid leave, and under what circumstances, as well as the total allowable amount of paid leave. The revised bill also eliminates the expanded definitions of parents and family members in the original bill. The key provisions of the revised EFMLEA include the following:
- A covered employee includes anyone employed by the employer for 30 days or more.
- A covered employer includes an employer with less than 500 employees, as well as public agencies as defined in the FMLA.
- Leave is allowed for employees who are unable to work, or telework, due to a need to care for a minor child if the child’s school or place of care has been closed or the child care provider is unavailable due to a public health emergency related to COVID-19.
- The first 10 days of any coronavirus-related family leave may be unpaid.
- Employees may elect to substitute any accrued paid vacation, parental, medical or sick leave for unpaid leave.
- Employers must provide paid leave for each day of emergency leave taken after the initial 10 days, in an amount not less than two-thirds of an employee’s regular rate of pay.
- Paid leave is capped at $200 per day, and $10,000 in the aggregate.
As with regular FMLA leave, the leave is job-protected, meaning an employer must return the employee to the same or equivalent position upon return. There is a limited exception for employers of less than 25 employees where the employee’s position no longer exists upon return to work due to economic conditions or other changes caused by the coronavirus emergency, and the employer has made reasonable efforts to restore the employee to an equivalent position.
2. Changes to the Emergency Paid Sick Leave Act
The revised bill still provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) for coronavirus-related illness and self-quarantine, but limits the conditions in which leave can be taken and caps the daily and total amount of compensation. Under Division E of the revised bill, the Emergency Paid Sick Leave Act (“EPSLA”), employers must provide paid sick leave if the employee is unable to work, or telework, if the employee:
- Is subject to federal, state or local quarantine or isolation order;
- Has been advised by a healthcare provider to self-quarantine;
- Is experiencing symptoms of COVID-19;
- Is caring for a quarantined individual;
- Is caring for a minor child whose school or place of care has been closed due to COVID-19; or
- Is experiencing any other substantially similar condition related to COVID-19.
Other key provisions of the EPSLA include the following:
- The EPSLA applies to private employers with less than 500 employees and public agencies with one or more employees.
- Paid sick leave is available for immediate use, regardless of how long an employee has been employed.
- EPSLA leave must be paid at the employee’s regular rate of pay or minimum wage, whichever is greater, for uses 1-3 above (self-care or quarantine), and at two thirds the employee’s regular rate of pay for uses 4-6 (care of another).
- Paid leave is capped at $511 per day and $5,110 in the aggregate for uses 1-3 (self-care or quarantine) and is capped at $200 per day and $2,000 in the aggregate for uses 4-6 (care of another).
- An employee may use paid sick leave under the EPSLA before using other leave.
- An employer may not require an employee to use other paid leave before the employee uses his or her EPSLA leave.
- Employers may not discriminate or retaliate against employees who take paid sick leave. Violations of these provisions may result in penalties for failure to pay minimum wages consistent with the Fair Labor Standards Act.
The House has given the Secretary of Labor authority to exempt certain healthcare providers and first responders from the obligation to provide emergency leave, and to exempt small business (less than 50 employees) from the obligation to provide emergency leave when such leave would “jeopardize the viability of the business as a going concern.” Employers who are health care providers may also choose to exempt their employees from the provisions of the EFMLEA and EPSLA.
The Senate is set to vote on the House Bill shortly. Shipman & Goodwin will provide additional guidance as more information becomes available.