COVID-19 Federal Legislation Update

Over the weekend, the House passed a Bill that would substantially alter FMLA. The Bill appears to have the President’s approval but, from what we have heard, many Senators do not believe the Bill goes far enough, so it is up in the air at this time. That being said, there will be modifications to FMLA due to COVID19, and the House Bill gives a good indication of where we are headed. 

The Bill applies only to government workers and private sector Employers who have less than 500 employees and to emergency leave related to the virus. But it also extends coverage to private sector Employers with less than the presently required 50 employees. Employers with fewer than 50 employees may be exempted if the Secretary of Labor determines that compliance with the Bill would subject such a business to closing.

The Bill eliminates certain employee eligibility requirements that FMLA currently requires. Employees who have been employed for 30 or more days are covered. (The Bill does not expressly say 30 consecutive days). Employees would not have to satisfy the currently required one-year or 1,250 hours of employment thresholds to be covered.

Under the Bill, FMLA would apply to emergency leave taken to: (1) to self- quarantine due to a COVID19 diagnosis or to seek a diagnosis or preventative care; (2) to comply with either a requirement or a recommendation of a governmental official or recommendation of a health care provider to quarantine due to exposure to or symptoms of  the virus or due to other health factors of the individual involved; (3) to care for an at-risk family member who must be quarantined due to exposure to or symptoms of the virus; and (4) to care for a child of the employee if the child’s school or place of care has been closed or the childcare provider is unavailable due to the virus. It is unclear if in loco parentis will apply to “a child of the employee” or what “unavailable due to” the virus means, but these terms are likely to be given broad interpretation such that if a child care provider voluntarily closes due to the virus, the Bill would apply.

It is not clear if the Bill would require Employers to grant intermittent leave, and that could be an issue where children are in the care of divorced or separated parents having joint custody.

The first 14 days of emergency leave would be unpaid, but the employee could elect to use that time concurrently with any available PTO. Unlike the current law, however, the Employer could not require the employee to use PTO. It is unlikely that an Employer would want to require the simultaneous use of PTO, as most employers will be facing cash flow issues due to lost business. After 14 days, leave would be paid up to 80 hours (pro rated for less than full-time employees). Employees taking leave for any of the first three reasons listed above must be paid at their regular rate of pay, which, presumably, would include shift premiums. Employees taking leave to care for a child due to a school or place of care closing would have to be paid a minimum of two-thirds of the employee’s regular pay rate. (Most likely, traditional tests under the Fair Labor Standards Act will apply in determining an employee’s regular pay rate). 

Employees taking emergency leave must give as much advanced notice to the Employer as is practical under the circumstances. 

Standard FMLA reinstatement rights apply, unless an Employer has fewer than 25 employees and if certain conditions exist.

The paid time off required under these emergency provisions is in addition to any existing PTO policy, plan or practice the Employer has, and Employers will not be permitted to alter existing plans once the Bill becomes law. Employers may still enforce any “call out” rules in effect. The Bill would not require any carryover of paid sick leave into next year nor payments to employees who do not use the emergency paid leave. Employers will be required to post a poster explaining the new rights. 

There will be tax credits for Employers required to pay for leave required by the Bill, and Treasury Secretary Mnuchin has stated that there will be funds available to assist Employers in making the required sick leave pay.  

The emergency provisions, if enacted, would take effect 15 days after they become law and would expire on December 31, 2020.