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