Early on Saturday, March 14, 2020, the U.S. House of Representatives passed a Bill which attempts to address a number of concerns relating to COVID-19, the “Coronavirus.” This Bill addresses diverse issues, including many which directly impact employers. The Bill moved to the Senate, where two versions are currently being debated.
This Bill could be passed into law at any moment, or it could see substantial changes which would require additional lawmaking process. One potential delay is the possibility that the White House might wish to add an unrelated $850 Billion stimulus Bill to the Bill currently under debate in the Senate. That type of addition could lead to significant delay. Here’s a look at the provisions which will most directly impact employers
FMLA Changes
The first issue of importance to employers will almost certainly involve temporary changes to the Family and Medical Leave Act (FMLA). The first thing to know is that those changes will likely apply only to employers having fewer than 500 employees. The Bill would require employers to provide leave for additional reasons specifically related to Coronavirus. To the extent that qualifying leaves related to the pandemic would extend beyond two weeks, the Bill would allow employers to provide such leave at reduced rates of pay.
These proposed changes to the FMLA would allow for additional, later regulation, to exclude certain employers in industries deemed to be necessary for addressing needs caused by the pandemic. The areas identified are healthcare and emergency personnel.
One of the most drastic changes is that the Coronavirus-specific leave provisions would not be subject to the traditional FMLA requirements that an employee has been employed for at least a year, has worked at least 1,250 hours in the previous 12 months, and works at a location where the employer has at least 50 employees within a 75 mile radius. Instead, an employee would only need to have worked for his or her employer for 30 days.
While this deviation from the standard FMLA requirements is a major change, the Bill also provides that subsequent legislation may create an exemption for small businesses with fewer than fifty employees, and if compliance would threaten the continued viability of the business.
Covered Leave
The Coronavirus-specific FMLA leave provisions would allow an employee to take leave in order to comply with the recommendations of a health care provider or health authority that their presence would jeopardize the health of others due to their own exposure to Coronavirus or the their own display of symptoms of Coronavirus, when the employee is unable to perform the functions of their job and also comply with that recommendation.
Similarly, an eligible employee could take leave to care for a family member for whom a healthcare provider or health authority has determined that their presence in the community would jeopardize the health of others in the community, due to either exposure to the virus or display of symptoms of the virus.
Finally, the Bill would allow an eligible employee to take leave to care for their own child who is under the age of 18 if that child’s elementary school, high school, or daycare is closed, or if the child’s other care provider is unavailable, where such closure or unavailability of care is due to emergency created by the virus.
Paid Sick Leave
The second major component of the legislation would create mandatory paid sick leave for conditions relating specifically for Coronavirus. This leave provision is not created under the FMLA changes, but rather is a new and separate type of leave created by this Bill. For full time employees, employers would be required to provide up to 80 hours of paid sick time for qualifying needs related to Coronavirus.
Qualifying reasons for leave include an employee’s need:
- to isolate themselves due to diagnosis with Coronavirus;
- to obtain a diagnosis or medical care if the employee is experiencing symptoms of Coronavirus;
- to comply with an order or recommendation from a health care provider or health authority that their presence on the job would present a risk to the health of others because either they have been exposed to Coronavirus or are displaying symptoms of Coronavirus;
- to care for a family member of the employee who is self-isolating due to diagnosis with Coronavirus or who is seeking medical care due to symptoms of Coronavirus;
- to care for a family member of the employee for whom a healthcare provider or health authority has recommended that the family member’s presence in the community would create a risk for the health of others in the community due to that family member’s exposure to the Coronavirus or display of Coronavirus symptoms; or
- to care for the employee’s child due to school or daycare closure or unavailability of a care provider due to Coronavirus.
Sick leave that is taken for the purpose of caring for an employee’s child or family member, as related to illness or school closure, can be paid at two-thirds (2/3) the employee’s regular rate of pay. Leave taken for any other qualifying reason must be paid at an employee’s regular rate of pay. This leave is supplemental to any other type of leave provided by the employer, and does not relieve the employer from providing any other type of leave offered.
Tax Credits
The Bill seeks to provide a mechanism for employers to recover some costs expended due to the implementation of these changes. There would be restrictions placed on which employers could receive credits and the total amount recovered would be subject to a maximum cap. As is often the case, the financial component of the Bill may be subject to the greatest scrutiny and change as it proceeds through the lawmaking process.
What Next?
The Bill is currently being debated in the Senate. How quickly it could pass depends on what changes are made in the Senate and whether the White House seeks to add additional legislation. We will keep you updated on this Bill as it progresses through the Senate, and provide greater details if and when it becomes law.
Larger Employers
While the provisions of this Bill apply only to employers with fewer than 500 employees, it is crucial to remember that the Americans with Disabilities Act, the FMLA, and state and local laws already impose obligations upon all covered employers which will likely apply to situations involving Coronavirus. This Bill does nothing to relieve employers of their obligations under these various other laws. It is vital to remain in compliance with all of these requirements during this unprecedented time.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including all aspects of FMLA and other leave-related issues, for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
