Federal Legislation Would Provide Paid Sick Leave and Paid Family and Medical Leave to Eligible Workers

With businesses closing their doors and sending workers home, the House of Representatives passed the Families First Coronavirus Response Act (HR 6201) to address the severe impact of coronavirus (COVID-19) on Americans’ personal safety and financial security. The bill, passed by the House on March 14, 2020, now moves to the Senate and has the support of the White House.

For employers, the Act contains two key provisions: (1) the creation of emergency paid sick leave for up to 80 hours for certain employees; and (2) the expansion of the Family and Medical Leave Act (FMLA) for Public Health Emergency Leave, including partial payment for such leave.

The bill also provides $1 billion in emergency transfers for unemployment compensation administration, half of which would be used to provide immediate additional funding to all states for staffing, technology, systems, and other administrative costs if certain conditions are met. The other half would be reserved for emergency grants to states which experienced at least a 10 percent increase in unemployment, provided the states take steps to temporarily ease eligibility requirements that might limit access to unemployment insurance, such as work search requirements and waiting periods.

Emergency Paid Sick Leave

The portion of the bill called the “Emergency Paid Sick Leave Act” amends the Social Security Act to provide certain employees with paid sick leave benefits. 

Covered Employers. The bill only covers certain employers—private employers with fewer than 500 employees, and public agencies regardless of size. Covered employers also include successors in interest.

Amount of Leave. Covered employers are required to provide full-time employees with 80 hours of emergency paid sick leave. Part-time employees are entitled to emergency paid sick leave at their regular rate of pay for the average number of hours that such employee works in a two-week period. Emergency paid sick time does not carryover from one year to the next. 

Employee’s Own Usage. Employees are eligible to use emergency paid sick leave, paid at the employee’s full regular rate—determined in accordance with the Fair Labor Standards Act (FLSA) and guidelines to be issues by the Secretary of Labor—for the following reasons relating to the employee’s own condition:

1. To self-isolate because the employee is diagnosed with COVID-19;
2. To obtain medical diagnosis or care if the employee is experiencing symptoms of COVID-19; or
3. To comply with a recommendation or order by a public official or health care provider if the employee’s physical presence on the job would jeopardize the health of others because of exposure to or symptoms of COVID-19. 

Caring for Family Members. For family care reasons, employees are entitled to two-thirds of their regular rate of pay if taking leave: 

1. To care for or assist a family member of the employee who:
   1. Is self-isolating due to a COVID-19 diagnosis,
   2. Is experiencing symptoms of COVID-19 and needs to obtain medical diagnosis or care, or
   3. Whose presence in the community has been deemed by a public official or health care provider to jeopardize the health of other individuals in the community because of exposure to or symptoms of COVID-19; or
2. To care for a child whose school or place of childcare has been closed, or the childcare provider is unavailable, due to COVID-19. 

Family members are parents, spouses, and children of the employee. The definitions of parent and child are more expansive than the FMLA definition to include step-parents, step-children, and parents-in-law. They also include the employee’s siblings, next of kin, grandparents, and grandchildren, provided that the individual is a pregnant woman, senior citizen, or individual with a disability or has access or functional needs. 

Employer Policies and Other Mandated Leave. The bill provides that it does not diminish an employee’s rights or benefits under state or local laws or an existing employer policy. Unlike the paid leave bill introduced in Congress recently, this bill does not preempt state and local leave mandates. 

An employer’s existing paid sick leave policies cannot serve as a substitute for emergency paid sick time under HR 6201. The bill provides that employees are entitled both to any employer-sponsored sick time and to emergency paid sick time and further that employers cannot reduce their paid sick leave policies to avoid being subject to the new requirements. Thus, employees’ sick leave entitlements may derive from three sources: federal emergency paid leave, state/local-mandated leave, and employer-sponsored leave policies.

Usage and Termination of Leave. Federal emergency paid sick time will be available immediately for use. An employer may not require an employee to use other employer-provided paid sick leave before using emergency paid sick leave. The emergency paid sick leave under HR 6201 ceases on the employee’s next scheduled work shift immediately following the termination of the need for such leave for a qualifying COVID-19 reason. 

Bargaining Units. The bill applies to bargaining unit employees and provides that it does not diminish any rights under a bargaining agreement. For employees in multi-employer bargaining units, the bill contains provisions for how the emergency paid sick time provisions will operate under multi-employer funds or plans. 

Notice and Documentation. Once leave has commenced, an employer may require the employee to follow “reasonable” notice procedures of an employee’s need for leave in order to continue receiving emergency sick time under the bill. However, the bill does not require employees to provide medical or other verification documenting the need for leave.

Enforcement Provisions. The bill contains anti-discrimination and non-retaliation provisions. It also contains penalties for non-compliance, which is deemed a violation of the FLSA.

FMLA Expansion: Public Health Emergency Leave

The Families First Coronavirus Response Act also contains the “Emergency Family and Medical Leave Expansion Act,” amending the FMLA to create a new category of Public Health Emergency Leave related to COVID-19. This leave would be partially paid. 

Covered Employers. The bill covers private employers with fewer than 500 employees and public agencies regardless of size. The bill grants the Secretary of Labor the authority to issue regulations to exclude certain health care providers and emergency responders as eligible employees under the Act. The Secretary of Labor also may exempt small businesses with fewer than 50 employee from the Act’s requirements if imposing such requirements would jeopardize the viability of the business.

Leave Usage. Eligible employees have the right to take up to 12 weeks of job-protected leave under the FMLA to be used for the following reasons:

1. To comply with a requirement or recommendation to quarantine due to exposure to or symptoms of COVID-19, provided the employee is unable to perform the functions of his or her job while complying with the recommendation or order to quarantine;
2. To care for a family member who is recommended or required to quarantine due to exposure to or symptoms of COVID-19; or
3. To care for the employee’s child under age 18 whose school or place of care has been closed, or whose childcare provider is unavailable, due to a public health emergency related to COVID-19. 

There is considerable overlap in the reasons for taking expanded FMLA leave and the reasons for an employee to use emergency paid sick leave, including: a symptomatic employee who is quarantined or seeking medical care; the employee is taking leave to care for a symptomatic family member who is quarantined; or the employee is caring for a child due to school closure or childcare provider unavailability. 

Employee Eligibility. In the case of Public Health Emergency Leave, an eligible employee only must have worked for the employer for at least 30 calendar days. The condition imposed for reason (1) above suggests that employees who are able to work remotely while isolated or quarantined will not be eligible for leave under the FMLA Expansion Act.

Qualifying Family Members. The same expanded definitions of parent and child described above for emergency paid sick leave apply to the expansion of FMLA leave. The expansion also covers children, next of kin, grandparents and grandchildren of the employee who are pregnant, senior citizens, disabled, or have access or functional needs.

Relationship to Paid Leave. The first 14 days for which an employee takes Public Health Emergency Leave may be unpaid, during which time the employee may elect to use any accrued vacation, personal or sick leave, including emergency paid sick leave in accordance with the Emergency Paid Sick Leave Act outlined above. The employer may not require substitution of paid leave. 

Following the first 14 days of leave, employers covered by the FMLA Expansion Act must provide paid leave that is not less than two-thirds of an employee’s regular rate of pay for the number of hours the employee would normally be scheduled to work. 

Job Restoration. The job restoration rights are the same as under the FMLA today, except that employers of fewer than 25 employees may be excused from reinstating an FMLA user if certain conditions are met, including the fact that the position held by the employee when leave commenced no longer exists due to economic conditions or other changes in operations caused by the public health emergency.

Effective Dates

Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act take effect 15 days after enactment and sunset on December 31, 2020.

Employer Preparedness

As noted, if enacted, employers will have just 15 days to be ready to comply. Given the likelihood that the bill will become law in its current form or a modified form, employers should begin planning now for compliance. Employers may want to issue amended leave policies to communicate to employees their options for using leave in COVID-19 situations. Also, employers should consider setting up call-in or reporting channels to monitor which employees are using the various forms of available leave for qualifying reasons. Employers also will want to have systems for tracking leave usage and determining the type of leave being used. Finally, employers should determine what changes are needed in payroll systems to administer the payment of leave benefits.

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