Near midnight last Friday, the U.S. House of Representative passed HB 6201, known as the Families First Coronavirus Response Act (the “Proposed FFCRA”), which we previously summarized here.  On March 16, 2020, the House passed a resolution making significant and meaningful changes to the Proposed FFCRA.  This article summarizes the changes to the Proposed FFCRA.

This afternoon, media reports indicated that Senate Majority Leader Mitch McConnell said the Senate will pass the House's revised Proposed FFCRA without changes.

Emergency Paid Sick Leave Act

• Summary: This would still be a new statute requiring employers with fewer than 500 employees and government employers to provide all employees up to two weeks of paid sick leave for certain qualifying COVID 19 related absences for immediate use until December 31, 2020.  Violations would still be a violation of the Fair Labor Standards Act. 

• Small Business Exemption: The revised FFCRA now states that the Secretary of Labor may exempt small business with fewer than 50 employees when the imposition of the requirements would jeopardize the viability of the business as a going concern. 

• Reasons for Use: The revised Proposed FFCRA changed the list of reasons that would qualify for emergency paid sick time, assuming an employee cannot work or telework, to include: 
  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; 
  • The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns; 
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; 
  • The employee is caring for an individual who is subject to government quarantine or isolation order or has been advised by a health care provider to self-quarantine as described above; 
  • The employee is caring for a child because the child’s school or place of care has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions; and 
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and of Labor. 
• Rate of Pay / Hours: The revised Proposed FFCRA would still require all employees be paid at their regular rate of pay for up to two weeks for qualifying reasons, but now includes caps on the amount of pay per day and amount paid in total: 
  • Full-time employees would receive up to 80 hours at their regular rate of pay, subject to caps. 
  • Part-time employees would receive the average number of hours of work they work over a two-week period at their regular rate, subject to the caps. 
  • Where leave is taken on account of the first three reasons listed above, paid sick leave is limited to $511 per day or $5,110 in total. 
  • Where leave is taken on account of the last three bullets, paid leave is limited to $200 per day or $2,000 in total. 
  • These limits match the proposed caps on the tax credits employers will receive for payment of paid sick leave under the Proposed FFCRA against their share of Social Security taxes. 
• Interaction with Existing Policies:
  • The revised Proposed FFCRA appears to have removed the original proposed language that would have prevented employers from changing existing paid time off policies, including any new emergency paid time off granted by employers in response to COVID 19, but this remains unclear.
  • The revised Proposed FFCRA continues to say that employees would have the right to choose to use paid emergency sick leave before existing paid time off benefits (PTO, vacation, personal days, sick days).
• Health Care Providers / Emergency Responders Exclusion: The Revised FFCRA would also now permit an employer of certain health care providers or emergency responders to elect to exclude such employees from the application of this rule.

Family and Medical Leave Act Exemption

• Summary: The FMLA would be amended to require employers with fewer than 500 employees and government employers to provide employees who have been on the job for at least 30 days with twelve (12) weeks of job-protected leave for qualifying COVID 19-related absences, including partial pay after the first ten (10) days, until December 31, 2020.
• Small Business Exception: The revised FFCRA continues to allow the Secretary of Labor to exempt small business with fewer than 50 employees when the imposition of the requirements would jeopardize the viability of the business as a going concern, as well as to preclude lawsuits against small employers by employees.
• Reasons for Use: The revised Proposed FFCRA would narrow the list of COVID 19-related reasons for FMLA leave to situations in which an employee is unable to work (or telework) due to a need for leave to care for the employee’s child under 18 years of age if the child’s school or other place of care has been closed, or the child care provider of such child is unavailable, due to a public health emergency.
• Paid v. Unpaid:
  • The revised Proposed FFCRA would allow the first ten (10) days of COVID 19-related FMLA leave to be unpaid (instead of fourteen (14) as original proposed).
  • Employees would continue to have the option to use accrued paid time off (PTO, vacation, sick days, etc.) during the first ten (10) days or the proposed new emergency paid sick leave (outlined above).
  • After those first ten (10) days, employees would still be paid at 2/3 of their regular rate, but the Revised FFCRA would limit such required pay to no more than $200 per day and $10,000 total.
• Health Care Providers / Emergency Responders Exclusion: The Revised FFCRA continues to allow the Secretary of Labor to exclude certain health care providers or emergency responders from being eligible employees for good cause.