FEDERAL GOVERNMENT CONSIDERS BILL REGARDING COVID-19 PUBLIC HEALTH EMERGENCY

By: Ian A. Loos

**UPDATE: The Families First Coronavirus Response Act was enacted on March 18, 2020. The provisions discussed below “shall take effect not later than 15 days after enactment.”**

On Saturday, March 14, 2020, the U.S. House of Representatives passed a bill entitled the Families First Coronavirus Response Act, intended to provide some relief in response to the COVID-19 coronavirus pandemic. Additional revisions to this bill were made by the House on Monday, March, 16. Although this bill has not yet been passed into law, as it has not yet been passed by the Senate or signed into law by the President, it is expected that a version of this bill will be passed into law before the end of the week.

The version of the Families First Coronavirus Response Act, passed by the House of Representatives provides two significant changes that will be particularly important to employer and employees, and the bill provides for emergency paid sick leave, and an expansion of the Family Medical Leave Act (FMLA) to provide additional protections in situations of public health emergencies.

Emergency Paid Sick Leave

If passed into law, the Families First Coronavirus Response Act will require private employers to provide its employees with paid sick leave. If enacted in its present state, this mandate will be the first instance of federal law requiring private employers to provide paid sick leave. This requirement will apply to private employers with fewer than 500 employees, and public agencies with at least one employee.  Under the emergency paid sick leave provision, if employees of a covered employer must miss work due to a qualifying, coronavirus-related reason, full-time employees will receive 80 hours of paid emergency sick leave, while part-time employees will receive the paid sick leave equivalent to the average number of hours they work in a two-week period. Paid sick leave available to employees will be capped at $511 per day, or $5,111 in aggregate for employees home due to their own quarantine, and $200 per day, or $2,000 in aggregate if the employee is caring for a quarantined family member or is home due to a child’s school closure.

Qualifying conditions that permit an employee to take emergency paid sick leave are as follows. The employee must be:

  1. Under self-quarantine after diagnosis with coronavirus or upon recommendation of a doctor or public health official;
  2. Seeking diagnosis of medical care after experiencing coronavirus symptoms; or
  3. Providing care to a family member who is self-isolating due to exposure to, symptoms of, diagnosis of coronavirus, or caring for a child whose school or child care provider is closed or otherwise unavailable due to coronavirus.

Employees qualifying for emergency paid sick leave due to their own quarantine or coronavirus symptoms are entitled to their regular rate of pay, subject to the $511 per day and $5,111 aggregate caps, while employees qualifying for emergency paid sick leave due to their caring for another who is quarantining or due to closure of schools or child care providers, are entitled to two-thirds their regular rate of pay, subject to $200 per day and $2,000 aggregate caps.

FMLA Public Health Emergency

The Families First Coronavirus Response Act, if enacted, would also expand and revise protections under the Family Medical Leave Act (FMLA), allowing FMLA leave for a “qualifying need related to a public health emergency,” including coronavirus. This revision is significantly different from traditional FMLA protections, namely, the public health emergency provision applies to all employers with fewer than 500 employees, and applies to all employees that have worked for the employer for the 30 calendar days, while traditional FMLA protections only apply to employers with more 50 employees or more, and do not apply until the employee has worked for 12 months. The bill contains exceptions for healthcare providers, emergency responders, and public agencies, and permits exceptions to the expanded FMLA coverage for public health emergencies on a case-by-case basis if it is determined the economic viability of the employer would be jeopardized. This determination would be subject to criteria to be determined by the Secretary of Labor.

A “qualifying need related to a public health emergency” under the revised FMLA provision is limited to an employee being “unable to work (or telework)” due to their need to care for their son or daughter (under the age of 18) whose school or daycare has been closed due to the coronavirus public health emergency.

Under this expanded FMLA leave, the first 10 days of public health emergency leave are unpaid unless the employee elects to use personal vacation or sick time. However, should it pass, the “emergency paid sick leave” referenced above may cover this 10-day period, at the employee’s election. The most significant change to traditional FMLA protections under the public health emergency provision, is that the remaining period of qualifying leave for the public health emergency—up to the full 12 weeks FMLA provides—is to be paid at a rate of pay that is “at least two-thirds of the regular rate” the employee would have earned with a normal work schedule not to exceed $200 per day, or $10,000 in aggregate. Under traditional FMLA coverage, the full 12-week leave is unpaid.

As is typical with FMLA, the employer is required to reinstate the employee to their same position upon conclusion of their public health emergency leave. However, there are some exceptions for small employers and positions that no longer exist as a result of coronavirus.

As currently written, the public health emergency expansion of FMLA is only applicable from 15 days following the enactment of the Families First Coronavirus Response Act, and expires on December 31, 2020.

Although not discussed herein, the Families First Coronavirus Response Act also contains tax credits for employers required to expend funds for emergency paid sick leave and FMLA public health emergency leave.

Again, as noted above, the Families First Coronavirus Response Act has not yet been enacted into law, and even if enacted, the legislation may be amended in a manner that may significantly alter various facets of the legislation discussed above. Our attorneys at Bell, Orr, Ayers & Moore, P.S.C. (BOAM) will continue monitoring this situation and will stay abreast of the changing nature of this legislation. Please do not hesitate to contact Ian Loos or another BOAM attorney if you have any questions regarding the Families First Coronavirus Response Act or other coronavirus legislation, at Loos@boamlaw.com or 270-781-8111.

Please note that the foregoing summary does not constitute legal advice. Please contact an attorney to address any specific concerns you may have with regard to how this legislation may specifically impact you or your business.