On March 14, 2020, the House of Representatives passed HR 6201, the Families First Coronavirus Response Act. Now, the Senate will consider the bill. As currently drafted, the bill will go into effect no later than 15 days after it is enacted and will remain in effect until December 31, 2020. Among other proposals, the bill proposes an emergency FMLA expansion, emergency paid sick leave and an employer tax credit, all of which would apply to employers with fewer than 500 employees.
Emergency Family and Medical Leave Expansion Act
Under the proposed FMLA expansion, employers with fewer than 500 employees would have to permit 12 weeks of job-protected FMLA leave to employees who have been employed for 30 days or more. The first two weeks may be unpaid, though employees may elect to use other paid benefits to cover the two weeks. The remaining leave must be paid at no less than two-thirds of the employee’s regular rate. The proposed expanded leave can be used for the following reasons:
- To adhere to a requirement or recommendation of a public official with jurisdiction or a health care provider to quarantine due to exposure to or symptoms of coronavirus;
- To care for an at-risk family member who is adhering to a requirement or recommendation of a public official with jurisdiction or a health care provider to quarantine due to exposure to or symptoms of coronavirus; and
- To care for a child of an employee if the child’s school or place of care has been closed, or the child-care provider is unavailable, due to a coronavirus.
Emergency Paid Sick Leave Act
Under the proposed Emergency Sick Leave Act, employers with fewer than 500 employees and government employers would be required to provide paid sick leave in the event of any public health emergency, in addition to what the employer already provides its employees. “Public health emergency” is defined as “an emergency with respect to coronavirus declared by a Federal, State, or local authority,” and many jurisdictions are thus already in a public health emergency. The emergency paid sick leave would apply to all employees, regardless of the amount of time the employee has been employed by the employer. Employers would not be allowed to seek certification or documentation from a health care provider. And, employers may not require employees to use any other sick leave provided before the additional sick leave.
Under the proposed law, the emergency paid sick leave can be used:
- To self-isolate because the employee is diagnosed with coronavirus
- To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus
- To comply with a recommendation or order by a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of:
- the exposure of the employee to coronavirus or
- exhibition of symptoms of coronavirus by the employee.
- To care for or assist a family member of the employee:
- who is self-isolating because such family member has been diagnosed with coronavirus;
- who is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care; or
- where a public official with jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of:
- the exposure of such family member to the coronavirus; or
- exhibition of symptoms of coronavirus by such family member.
- To care for the child of such employee if the school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.
Full-time employees would be entitled to 80 hours of paid sick leave. Part-time or hourly employees would be entitled to the number of hours the employee was scheduled to work for 2 weeks, or the number of hours the employee regularly works in a 14-day period. For paid sick leave for quarantine or to seek diagnosis or care for the employee themselves, the leave would be paid at the employee’s regular rate. For sick leave to care for a family member or to care for a child due to school closure, the leave would be paid at two-thirds the employee’s regular rate.
Tax Credits for Paid Sick and Paid Family and Medical Leave
This section of the proposed law would provide a refundable tax credit equal to 100% of qualified paid sick leave wages paid by an employer for each calendar quarter. “Qualified sick leave wages” are defined as wages required to be paid under the Emergency Paid Sick Leave Act. Depending on the reason for the qualified sick leave wages (e.g. self-isolate versus caring for a family member), there are various caps per day.
Please stay tuned for updates as this bill works its way through the legislative process.