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Families First Coronavirus Response Act

The United States House of Representatives has passed H.R. 6201, the Families First Coronavirus Response Act.  The legislation will be taken up in the Senate and is expected to be passed, given the support of the White House. 

Among the provisions of the bill relevant to business are amendments to, and an expansion in the coverage of, the Family and Medical Leave Act ("FMLA") under the "Emergency Family and Medical Leave Expansion Act" and the creation of mandatory paid sick leave for employees under the new Emergency Paid Sick Leave Act.  These changes would sunset on December 31, 2020, barring further legislative amendment.

The summary of the relevant provisions prepared by House staff explains these provisions as follows:

             "The Emergency Paid Sick Leave Act.

This section requires employers with fewer than 500 employees and government employers to provide employees two weeks of paid sick leave, 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) and part-time employees are entitled to the typical number of hours that they work in a typical two-week period.

• The bill ensures employees who work under a multiemployer collective agreement and whose employers pay into a multiemployer plan are provided with leave."

                             ------------------------------

          "Amendments to the Family and Medical Leave Act of 1993.

This section provides employees of employers with fewer than 500 employees and government employers, who have been on the job for at least 30 days, with the right take up to 12 weeks of job-protected leave under the Family and Medical Leave Act 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;  • 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.  
 
After the two weeks of paid leave, employees will receive a benefit from their employers that will be no less than two-thirds of the employee’s usual pay."

                             ---------------------------------

Both provisions are specific to the declaration of an emergency.  The breadth of the language would tend to indicate that government orders calling for closures or limitation to work sites, could trigger benefits.  The FMLA amendments are triggered with a "qualifying need related to a public health emergency", more specifically a federal, state or local emergency declaration related to coronavirus.  Included within the definition is compliance with "a recommendation or order by a public official having jurisdiction"...."that (I) the physical presence of the employee on the job would jeopardize the health of others because of (aa) the exposure of the employee to coronavirus". H.R. 6201, p. 29-30.  The language of the Emergency Paid Sick Leave Act is largely identical.  H.R. 6201, p. 46.

The benefits under the Emergency Paid Sick Leave Act are to be used first, are in addition to any other benefits due to an employee, and are not waivable.  When stacked with the FMLA amendments, the employee obtains two weeks of paid leave followed by ten weeks at 2/3 of pay. 

The legislation does create a tax credit for employers equal to "100%" of the payments made, with several qualification.  The credit is to apply to the employer's excise tax under section 3111(a) (6.2% employer contribution) and applied on the employer's quarterly return.  The "100%" reference in the legislation is misleading as there are daily caps on the credit amount depending on the basis of the leave for which the employer makes payment, either $200 or $511/day, therefore affecting more highly compensated employees.

Within the amendments to FMLA is language that gives the Secretary of Labor the power to exempt small business: "to exempt small businesses with fewer than 50 employees from the requirements of section 102(a)(1)(F) when the imposition of such requirements would jeopardize the viability of the business as a going concern".  There is no indication if, or how, such exemptions would be issued, if at all.  No such potential exemption is contained with in the Emergency Paid Sick Leave Act.


 

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