In an unprecedented move with far-reaching implications for employers, the House passed the Families First Coronavirus Response Act, which expands Family and Medical Leave Act (FMLA) coverage and provides paid sick leave to certain employees impacted by coronavirus. Publicly endorsed by President Trump, the bill passed the House by a vote of 363-40 early Saturday morning and now heads to the Senate for approval.

Contained within the bill is the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

The Emergency Paid Sick Leave Act

If passed, the Emergency Paid Sick Leave Act will require employers with fewer than 500 employees to provide employees with paid sick leave. Specifically, it requires covered employers to provide employees with two weeks of paid sick leave at the employee’s regular rate of pay if the employee is

• quarantined due to coronavirus; or
• is experiencing symptoms and is seeking a coronavirus diagnosis or care.

Employees are also entitled to two weeks of leave, at two-thirds of the employee’s regular rate of pay, to care for a family member for the same reasons or to care for the employee’s child if the child’s school or place of care is closed or the child care provider is unavailable due to coronavirus.

While full-time employees are entitled to 80 hours of paid sick leave, part-time employees will receive the average hours that the employee works over a two-week period. Importantly, paid sick time provided under the bill is in addition to any paid sick leave the employer provides employees.

The Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (the FMLA Expansion Act) amends the FMLA to provide job-protected leave for employees affected by coronavirus. Importantly, the FMLA Expansion Act changes the definition of a qualifying employer, reduces the required length of service by an employee to 30 days and provides pay for leave taken after 14 days.

Like the Emergency Paid Sick Leave Act, the FMLA Expansion Act applies to employers with fewer than 500 employees. Under the act, employers are required to provide employees, who have been employed for at least 30 days, up to 12-weeks of job-protected leave to

• adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of the coronavirus;
• care for a family member who is adhering to a requirement or recommendation to quarantine due to exposure to or symptoms of the coronavirus; or
• care for the employee’s child if the child’s school or place of care has been closed or the child care provider is unavailable due to the coronavirus.

Leave under the FMLA Expansion Act is unpaid for the first two weeks. But, note that the paid sick leave discussed above could apply. After the first two weeks, leave is to be paid at no less than two-thirds of the employee’s usual pay.

Employers should note the following key differences between traditional FMLA leave and FMLA leave related to coronavirus.

• Removes the exclusion that the employer must employ 50 employees within a 75-mile radius. As such, employers with under 500 employees who may not otherwise qualify as employers under the FMLA will now be required to administer protected leave. Under certain circumstances, the Secretary of Labor is authorized to exempt employers with fewer than 50 employees.
• Removes the 12-month and 1,250-hour employee qualification for employees. Instead, an employee is eligible after he or she has been employed for at least 30 calendar days.
• Unlike FMLA leave, which is typically unpaid, after the first two weeks of leave, coronavirus-related leave is paid at an amount equal to at least two-thirds of the employee’s usual pay.

Taken together, and subject to the bill’s exceptions and qualifications, the Emergency Paid Sick Leave Act and the FMLA Expansion Act could provide 12 weeks of paid leave for many employees affected by coronavirus.

The bill does provide some relief to employers. Subject to certain caps and restrictions, employers are eligible to receive refundable tax credits for paid sick and protected leave based on the type of leave and whether the leave is for the employee or the employee’s family member.

BakerHostetler’s COVID-19 Employment Issues Task Force will continue to provide updates on the passage of this bill, and any revisions made by the Senate, as they become available.