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House Passes Coronavirus Bill with Major Implications for Employers

3/15/20

By: Jeffrey A. Hord and David A. Cole,

• When Does Law Go Into Effect – If passed, it would stay in effect until December 31, 2020 (unless renewed by Congress).
• When Is Leave Allowed – From now until the end of 2020, the Act would allow eligible employees to take FMLA leave to: (a) comply with a recommendation or order by a health care provider or public official to not attend work because of exposure to or symptoms exhibiting Coronavirus; (b) care for a family member being quarantined because of exposure to or symptoms exhibiting Coronavirus; or (c) care for a son or daughter whose school or place of care has been closed due to Coronavirus.
• Which Employers Are Covered – While traditional FMLA leave requirements only apply to employers with 50 or more employees, the new FMLA leave for Coronavirus would apply to all employers with fewer than 500 employees. However, the Act does give the U.S. Department of Labor authority to issue regulations for good cause that could exempt small businesses with fewer than 50 employees if imposing the new requirements would “jeopardize the viability of the business as a going concern.” As of right now, we are unaware of the Department of Labor working on such regulations.
• Which Employees Are Eligible – While traditional FMLA leave is only available to employees who have worked for 12 months and for 1,250 hours in the immediate preceding 12 months prior to taking the leave, the new FMLA leave for Coronavirus would apply to any employee (full or part-time) who has been employed for at least 30 calendar days.
• Does The Employer Have To Pay The Employee While Out On Leave – The first 14 days of FMLA leave for Coronavirus may be unpaid. An employee may choose to substitute available paid leave during those 14 days, but the employer may not require it. After 14 days, the employer must provide paid leave for the remainder of the FMLA leave for Coronavirus in an amount that is no less than two-thirds of the employee’s regular rate of pay for the number of hours the employee would otherwise normally be scheduled to work.
• What Is The Definition Of Family Member – an individual who is: (i) a pregnant woman, senior citizen, individual with a disability, or has access or functional needs; and (ii) who is a son or daughter of the employee, a next of kin of the employee or a person for whom the employee is next of kin; or a grandparent or grandchild of the employee.
• Is The Employee Guaranteed The Employee’s Position Upon Return – Just like traditional FMLA leave, the employee is entitled to his/her job position upon return from this leave, except employees with less than 25 employees may be exempted if the employee’s position does not exist anymore because of the public health emergency.

• When Does Law Go Into Effect – If passed, it would stay in effect until December 31, 2020 (unless renewed by Congress).
• Which Employees Are Eligible – Emergency paid sick leave under the Act must be available to all employees for immediate use regardless of how long they have been employed.
• How Much Paid Sick Leave Does An Employee Receive – Full-time employees must be given up to 80 hours of paid sick leave and part-time employees must receive a number of hours equal to the average hours they work over a 2-week period.
• How Much Is The Employee Paid While Out – Employees who take leave to self-quarantine or to seek diagnosis or care must be paid at their regular rate. Employees who use the leave to care for an afflicted family member or to care for a child whose school has closed must be paid at two-thirds their regular rate.
• What If An Employer Already Provides Paid Sick Leave – Employers with existing paid leave policies must provide this emergency paid sick leave in addition to the existing paid leave, and they may not change existing policies after the date of the Act to avoid these requirements.
• Can An Employer Require Substitution Of This Leave For The New Paid FMLA Leave – An employee may use this emergency sick leave to cover the first 14 days of unpaid FMLA leave for Coronavirus (see above). However, an employer may not require an employee to use other paid leave before using this emergency sick leave.

• For paid emergency sick leave, the amount of the credit, on a per-employee basis, is limited to $511/day for employees that self-isolate, have Coronavirus symptoms, or are ordered to stay home; otherwise, the credit is capped at $200 per day. There is effectively a two-week cap on this credit, after which the new FMLA tax credit would kick in.
• The amount of the FMLA leave credit, on a per-employee basis, is limited to $200/day and $10,000 total for all calendar quarters. These tax credits would cover one year, and could not be used in combination with the existing credit(s) for employers that provide paid family and medical leave to their employees.

• The Act would also direct $2 billion to state unemployment insurance programs as emergency grants for processing and paying unemployment insurance (UI) benefits, and to provide immediate funding for staffing, technology, systems, and other administrative costs of state unemployment agencies.
• Standard screening measures, such as “job seeker” requirements and mandatory waiting periods, would be waived for anyone applying for UI benefits who has either been diagnosed with COVID-19 or who has lost their job due to the spread of the virus.
• The Act provides for full federal funding of extended unemployment compensation for any state that experiences and increase of ten percent (10%) or more in its unemployment rate over the previous year.