Update on the House Bill's Emergency FMLA and Paid Sick Leave Provisions

On Monday, we wrote about the Families First Coronavirus Response Act (the “House Bill”), which was passed by the United States House of Representatives last weekend in response to the increasing COVID-19 pandemic.  The House Bill, which would be in effect from fifteen (15) days after becoming law until the end of 2020, establishes an emergency paid sick leave program and expands leave available under the Family and Medical Leave Act (“FMLA”). 

In what is a sign of the quickly-changing landscape that we find ourselves in, the House made a number of amendments to the House Bill on Monday evening that affect both programs.  This post addresses the provisions of the emergency paid sick leave and emergency FMLA programs if the House Bill becomes law as it is currently written.

Emergency Paid Sick Leave

As amended, the House Bill would require all employers with fewer than five hundred (500) employees—whether for-profit or not-for-profit—to provide an employee with paid sick leave for certain reasons relating to COVID-19.  Although the amended House Bill states that this leave is in addition to paid sick, vacation, or PTO time already provided by an employer, it does not say one way or another if such leave counts toward the emergency paid sick leave requirement.

Under the House Bill, full-time salaried employees would receive eighty (80) hours of paid sick leave.  Part-time and hourly workers would receive an amount of paid sick time equal to the number of hours that they work on average in a two-week period.  An employee would not need to be employed by his/her employer for a particular length of time to be eligible for paid sick leave, which could be taken intermittently or on a reduced schedule.

The amended version of the House Bill now provides that an employee of a covered employer could use the paid sick leave if he/she is unable to work or work remotely because:

  • He/she is subject to a local, state, or federal quarantine or isolation order related to COVID-19;

  • He/she has been advised by a health care provider to self-quarantine because of COVID-19;

  • He/she is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

  • He/she is caring for an individual subject to or advised to quarantine or self-isolate;

  • He/she is caring for a child whose school or place of child care is closed, or child care provider is unavailable, due to COVID-19;

  • He/she is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The amended House Bill caps the amount of sick leave payments to $511.00/day (up to an aggregate of $5,110.00) when leave is taken for the first three reasons.  It caps the amount of sick leave payments to $200.00/day (up to an aggregate of $2,000.00) for the last three reasons.

An employee would need to notify the employer orally or in writing of his/her need to take paid sick leave, including the expected duration of the leave, at least seven (7) days in advance if the need is foreseeable or, otherwise, as soon as practicable.  The House Bill would prohibit an employer from retaliating against an employee for taking paid sick leave and states that the failure to pay the mandated sick leave will be a violation of the Fair Labor Standards Act (“FLSA”).

The House Bill allows employers to exclude employees who are health care providers or emergency responders from its coverage.  It also grants the Department of Labor the authority to issue regulations to exempt businesses with fewer than fifty (50) employees if the paid sick leave mandates “would jeopardize the viability of the business as an ongoing concern.”

Finally, the House Bill would give potential tax relief for employers required to provide emergency paid sick leave.  In particular, a covered employer could claim a refundable tax credit equal to 100% of paid sick leave wages mandated by the bill each calendar quarter.  The credit would be against the employer’s share of Social Security taxes.

Emergency FMLA

The amended House Bill would also require all employers with fewer than 500 employees to provide up to twelve (12) weeks of job-protected FMLA leave to an employee who has been employed for thirty (30) calendar days if he/she is unable to work or telework due to the need to care for a child whose school or place of child care has been closed, or whose child care provider is unavailable, due to COVID-19. 

As amended, the House Bill would provide for an unpaid initial ten (10) day period during which qualifying employees could use accrued paid leave (e.g., sick leave, vacation leave, or PTO) concurrently with emergency FMLA leave, but could not be required to do so.  After this initial ten (10) day period, the employee’s remaining emergency FMLA leave would have to be paid at two-thirds his/her regular rate for the number of hours he/she would work, up to a cap of $200.00/day (up to an aggregate of $10,000.00).

Although the emergency FMLA leave would be job-protected, there is an exception to this requirement for employers with fewer than twenty-five (25) employees if the employee’s position would not exist after the leave due to an economic downtown (so long as the employer takes steps including making reasonable attempts to return the employee to an equivalent position and contacting the employee for up to a year after displacement).

To mirror the emergency paid sick leave provisions of the House Bill, employers would be able to exclude employees who are health care providers or emergency responders from coverage under the emergency FMLA provisions.  It would also grant the Department of Labor the authority to issue regulations to exempt businesses with fewer than fifty (50) employees if the emergency FMLA mandates “would jeopardize the viability of the business as an ongoing concern.”

Finally, the House Bill would exclude employers with fewer than fifty (50) employees in a seventy-five (75) mile radius (i.e., employers who are generally covered by the FMLA), from civil damages in a FMLA lawsuit.

What’s Next?

As previously mentioned, the House Bill will not become law unless it is passed by the Senate and signed by the President.  At present, the Senate has not scheduled a vote on the House Bill. 

Even still, there are many questions that remain unanswered by the amended House Bill.  For example, it is unclear whether the emergency paid sick leave and the emergency FMLA leave would run concurrently or consecutively for qualified employees who are unable to work or telework because they need to care for a child whose school or place of child care has been closed, or whose child care provider is unavailable, due to COVID-19.  It is also unclear how soon any regulations would be promulgated regarding the potential exemption for businesses with fewer than fifty (50) employees and the qualifications for that exemption.

We will continue to keep employers updated on any developments on the House Bill, which would have sweeping implications if passed, and any other critical issues in this rapidly-changing area of the law.  For questions about the potential impact of COVID-19 in the workplace or any other labor and employment law matter, please do not hesitate to contact the attorneys at Hoffman & Hlavac.

George Hlavac