Late Friday night, the United States House of Representatives overwhelmingly passed the Families First Coronavirus Response Act. The Senate is expected to take up this legislation on Monday. The Bill as currently written will take effect 15 days after enactment. Although President Trump has already indicated he will sign the bill, the New York Times is also already highlighting that the Bill as currently written only applies to employers with fewer than 500 employees. If larger employers elect to provide similar additional benefits to their employees, then larger employers will not receive the tax credit that the federal government will provide to smaller employers to subsidize the additional paid benefits.
The Bill, as currently written, amends the Family and Medical Leave Act of 1993 to provide employees of employers with fewer than 500 employees who have been on the job for at least 30 days, with the right to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act to be used:
- 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 coronavirus.
In addition, the Bill expands the FMLA’s definition of a parent to include:
- A biological, foster or adoptive parent of the employee;
- A stepparent of the employee;
- A parent-in-law of the employee;
- A parent of a domestic partner of the employee;
- A legal guardian or other person who stood in loco parentis to an employee when the employee was a child.
The term “family member” means
- a parent of the employee;
- a spouse of the employee;
- a son or daughter of the employee 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 of the employee;
- A next of kin of the employee or a person for whom the employee is next of kin; or
- A grandparent or grandchild of the employee.
Interestingly, although an employee can apparently take this expanded leave to care for the parent of the employee’s domestic partner, the employee cannot take the leave to care for the domestic partner. The need to quarantine (either for the employee or the family member as the case may be) must be based on a recommendation or order of a public official having jurisdiction or a health care provider.
An employee of a covered employer who takes FMLA leave for the above reasons shall be entitled to paid leave. The first two weeks of the leave may be unpaid. However, as discussed in more detail below, this emergency legislation also provides two weeks of paid sick leave which an employee can use for the first two weeks of coronavirus related FMLA.
Following the first two weeks of this FMLA, an employer must provide paid FMLA leave in an amount not less than two-thirds of an employee’s regular rate of pay multiplied by the number of hours the employee otherwise is normally scheduled to work. In the case of an employee whose schedule varies from week to week, the employer must use the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the FMLA leave, including hours for which the employee took any leave of any type. If the employee did not work over the six -month period, then the employer must use the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
In any case in which the need for this type of leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.
Employees who take coronavirus related FMLA leave are entitled to reinstatement. Employers with fewer than twenty-five employees are exempted from this reinstatement requirement if economic conditions or other changes in operating conditions of the employer caused by this public health emergency result in the elimination of the employee’s job. However, even employers with fewer than 25 employees must make reasonable efforts to restore the employee to an equivalent position. If one does not exist, the employer must contact the employee if an equivalent position becomes available within one year.
Separate from the FMLA requirements outlined above, employees of covered employers are also entitled to two weeks of paid sick leave for coronavirus related absences. Unlike for the expanded FMLA leave above, all employees are eligible for this sick leave, even employees who have not yet worked thirty days. Full-time employees are entitled to 80 hours of paid sick leave and part-time employees are entitled to the typical number of hours that they work in a two-week period. The sick time is available for an employee to seek a diagnosis, to quarantine or to care for family members including to care for a child whose school has closed, or childcare provider is unavailable, due to the coronavirus.
Importantly, employers may not require an employee to use any paid leave that the employee accrued in accordance with the employer’s regular paid leave policies. However, the employee may elect to use such available leave.
Employers will be entitled to a tax credit though there is a cap on the available credit per employee.
The Secretary of Labor has the right to exempt certain health care providers as well as small businesses with fewer than 50 employees from the expanded FMLA requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.
Within seven days after the enactment of this law, The Department of Labor will publish a model notice to employees for employers to use.
This guidance is based on the current state of affairs. The above requirements may change once the Senate takes up the legislation tomorrow. However, we wanted to give you a preview of what the emergency legislation will require in its current form.