- gas workers
REVISIONS TO COVID-19 HOUSE BILL
Technical Corrections to House Bill
Significantly Change Previous
Provisions Regarding Paid Leave
Article By
Alex H. Glaser
R. Christian Johnsen
Sidney F. Lewis, V
Jones Walker LLP
Disaster Prep and Recovery Blog
Coronavirus News
Election Law / Legislative News
Labor & Employment
All Federal
Wednesday, March 18, 2020
On March 14, 2020, the House of Representatives passed H.R. 6021, the “Families
First Coronavirus Response Act,” which contains provisions related to mandatory
paid leave for employers with fewer than 500 employees. Since passage, the House
has been working on “technical corrections” to the bill prior to sending the bill to
the Senate for consideration. The technical corrections were voted on and passed by
the full House late in the evening on March 16, 2020.
The technical corrections significantly modify the existing bill. The principal
provisions of the bill (as technically corrected) are below:
The bill creates a new paid leave benefit called “emergency paid leave.”
Employees who are eligible for emergency paid leave are those individuals who
are unable to work due to one of the following conditions or situations: (i) the
employee is subject to a federal, state, or local quarantine order; (ii) the
employee has been advised by a healthcare provider to self-quarantine; (iii) the
employee is experiencing symptoms of coronavirus and seeking a medical
1diagnosis for the symptoms; (iv) the employee is caring for an individual who is
subject to a quarantine order or who has been advised to quarantine by a
healthcare provider; or (v) the employee is caring for a child because the child’s
school or place of care has been closed due to COVID-19.
Eligible employees do not have to be employed for a certain length of time in
order to be eligible for the paid leave provisions.
The bill mandates paid leave of up to 80 hours at an employee’s regular rate if
the employee takes leave to treat his or her own health issues related to
COVID-19 or if the employee is subject to a quarantine order. For any other
qualifying leave reason, the bill mandates paid leave at two-thirds of an
employee’s regular rate.
Part-time employees are entitled to leave for the two-week period for the hours
they work on average during a two-week period, and are entitled to pay at their
regular rate or to-thirds of their regular rate, depending on the reason for leave
(see above).
Paid leave is capped in an amount of $511 per day and $5,110 in the aggregate
if the employee takes leave to treat his or her own health issues related to
COVID-19 or if the employee is subject to a quarantine order. For any other
qualifying reasons for leave, paid leave is capped at $200 per day and $2,000 in
the aggregate.
The bill allows the Department of Labor to exempt employers with fewer than 50
employees if compliance with the paid leave provisions would jeopardize the
viability of the business as a going concern. It remains to be seen what kind of
guidance the Department will issue for small employers that meet this
threshold.
The paid emergency leave is in addition to any other paid sick leave provided by
a covered employer.
The bill expands the existing provisions of the Family and Medical Leave Act (FMLA)
to provide for “public health emergency leave” in the following ways:
The bill provides for leave for up to 12 weeks if the employee is unable to work
(or telework/work from home) due to a need to care for the employee’s child if
the child’s school or place of care has been closed because of a declared
emergency by a federal, state, or local government authority.
The FMLA leave entitlement only goes into effect after 10 days of unpaid leave.
During the first 10 days of leave, the employer can mandate that employees
substitute accrued vacation leave, personal leave, sick leave, or any other form
of paid time off. The employer can also mandate that employees use the two
weeks of emergency paid leave (described above) that is otherwise required to
be provided under the bill.
After 10 days, the bill provides for 10 weeks of paid leave at a rate of two-thirds
of the employee’s pay at the employee’s “regular rate” and reflect the number of
2hours the employee would otherwise be normally scheduled to work. In any
event, the amount of paid leave cannot exceed $200 per day and $10,000 in the
aggregate during the FMLA leave period.
The leave applies to all employees (full-time and part-time) who have been
employed by an employer for at least 30 days. This appears to be the only
eligibility requirement under the expanded FMLA provisions.
To determine whether an employer is subject to the 500-employee threshold, all
employees of the employer at all separate locations and divisions are included
if the separate locations and divisions are a single, integrated company. Some
employers may take the position that they are over the 500-employee threshold
based on operational control and common management in order to be excluded
from the 500-employee mandate.
The bill provides a potential exemption for employers with fewer than 50
employees if the Department of Labor determines that providing the paid leave
would jeopardize the viability of the business as a going concern. The bill also
exempts employers with fewer than 50 employees from any private right of
action the employer may face as a result of not complying with the leave
mandates. This effectively means that employers with fewer than 50 employees
are not likely to face significant liability for non-compliance with the expanded
FMLA provisions.
The bill also provides that employers with fewer than 25 employees who provide
emergency FMLA leave are exempt from the FMLA’s job restoration
requirements if the following conditions are met: (i) the employee’s job position
does not exist due to economic conditions caused by the coronavirus; (ii) the
employer makes reasonable efforts to restore the employee to an equivalent
position; and (iii) an equivalent position does not become available in the
following year.
The bill applies in equal measure to unionized employees. Unionized employers that
are currently contributing to a multi-employer paid sick leave plan can satisfy the
paid leave obligation by contributing the requisite amount of emergency leave to the
plan.
Employers would receive a refundable tax credit against the employer portion of
employment taxes paid for wages related to any of the leaves described above.
Employers will also be reimbursed if costs associated with providing emergency paid
or family leave exceed the amount of the employer portion of the employment taxes
paid, subject to a cap based on the number of individuals who took leave and the
number of leave days taken in each calendar quarter.
The full bill has been passed by the Senate and is now being sent to the President to
be reviewed and possibly signed into law. We will provide further details as new
information becomes available.
© 2020 Jones Walker LLP