In the early morning hours of March 14, the House passed H.R. 6201, which now moves to the Senate, where changes are likely to be made before enactment. Below are the key provisions currently included, with respect to employees' rights to time off and pay, employers' rights to tax credits for providing such pay, and a summary of the unemployment insurance support included in the bill:
Family Medical Leave Act Expansion
HR 6201 expands the FMLA to provide 12 weeks of paid job-protected leave to be used for any of the following reasons:
- To adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus (and the employee is unable to both perform the functions of their job and comply with the recommendation or order);
- To care for an at-risk family member who is adhering to a requirement or recommendation 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.
Application to Employers: Applies to employers with fewer than 500 employees. The DOL will be empowered to issue regulations excluding employers with fewer than 50 employees if the imposition of the requirements would jeopardize the viability of the business as a going concern.
Eligibility: Employees must have been on the job for at least 30 days. The DOL will be empowered to issue regulations excluding certain health care providers and emergency responders from the definition of eligible employee.
Pay: First 14 days of leave are unpaid. Employees may choose to use accrued personal or sick leave during the first 14 days, but employers may not require employees to do so. After 14 days, employer must provide paid leave that will be no less than two-thirds of the employee’s usual pay.
Family member includes: a parent; spouse; son or daughter, who is under 18 years of age; an individual who is a pregnant woman, senior citizen, individual with a disability, or has access or functional needs and who is a son or daughter or next of kin of the employee or a person for whom the employee is next of kin; or grandparent or grandchild.
Effective Date: Takes effect not later than 15 days after the date of enactment.
Paid Sick Leave
HR 6201 requires private employers with fewer than 500 employees and public employers with at least one employee to provide employees two weeks (80 hours) of emergency paid sick leave for specific circumstances.
- Self-isolation because employee is diagnosed with COVID-19;
- 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 ofthe employee on the job would jeopardize the health of others;
- To care for or assist a family member of the employee (A) who— (i) is self-isolating because such family member has been diagnosed with coronavirus; or (ii) is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care; (B) with respect to whom 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;
- 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.
Eligibility: The emergency paid sick time must be available for immediate use by the employee, regardless of how long the employee has been employed by an employer.
Rate of Pay
Paid at the employee’s regular rate to quarantine or seek a diagnosis or preventive care for coronavirus; or
Paid at two-thirds the employee’s regular rate to care for a family member for such purposes or to care for a child whose school has closed, or child care provider is unavailable, due to the coronavirus.
Full-time employees are entitled to 2 weeks (80 hours).
Part-time employees are entitled to the typical number of hours that they work in a typical two-week period.
Sequencing: An employee may first use the emergency paid sick time for the purposes described in the Act.
Prohibition: An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the emergency paid sick time
The emergency paid sick time must be made available to employees of the employer in addition to any existing paid leave. The employer may not change any existing paid leave on or after such date of enactment to avoid being subject to the Act.
Effective Date: Takes effect not later than 15 days after the date of enactment.
Expires on 12/31/20
Penalties (under 29 U.S.C. 216; 217)
HR 6201 provides $1 billion in 2020 for emergency grants to states for activities related to processing and paying unemployment insurance (UI) benefits, under certain conditions.
$500 million would be used to provide immediate additional funding to all states for staffing, technology, systems, and other administrative costs, so long as they met basic requirements about ensuring access to earned benefits for eligible workers. Those requirements are:
- Require employers to provide notification of potential UI eligibility to laid-off workers
- Ensure that workers have at least two ways (for example, online and phone) to apply for benefits
- Notify applicants when an application is received and being processed and if the application cannot be processed, provide information to the applicant about how to ensure successful processing.
$500 million would be reserved for emergency grants to states which experienced at least a 10 percent increase in unemployment. Those states would be eligible to receive an additional grant, in the same amount as the initial grant, to assist with costs related to the unemployment spike, and would also be required to take steps to temporarily ease eligibility requirements that are limiting access to UI during the COVID-19 outbreak
Payroll Credit for Required Paid Sick Leave and Required Paid Family Leave. HR 6201 provides a refundable tax credit equal to 100 percent of qualified paid sick leave wages and qualified family leave wages paid by an employer for each calendar quarter.
The tax credit is allowed against the tax imposed by section 3111(a) (the employer portion of Social Security taxes). Qualified sick leave wages are wages required to be paid by the Emergency Paid Sick Leave Act, and qualified family leave wages are wages required to be paid by reason of the Emergency Family and Medical Leave Expansion Act.
The section makes a distinction between qualified sick leave wages paid with respect to employees who must self-isolate, obtain a diagnosis, or comply with a self-isolation recommendation with respect to coronavirus. For amounts paid to those employees, the amount of qualified sick leave wages taken into account for each employee is capped at $511 per day.
For qualified sick leave wages paid to employees caring for a family member or for a child whose school or place of care has been closed, the amount of qualified sick leave wages taken into account for each employee is capped at $200 per day. The aggregate number of days taken into account per employee may not exceed the excess of 10 over the aggregate number of days taken into account for all preceding calendar quarters.
The amount of qualified family leave wages taken into account for each employee is capped at $200 per day, and at $10,000 in the aggregate with respect to all calendar quarters.
If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit is refundable to the employer. Employers may elect to not have the credit apply. To prevent a double benefit, no deduction is allowed for the amount of the credit. In addition, no credit is allowed with respect to wages for which a credit is allowed under section 45S.