On March 14th, 2020, the U.S. House of Representatives passed H.R. 6201; the Families First Coronavirus Response Act bill. On March 18th, the U.S. Senate passed H.R. 6201, intending to extend additional assistance to individuals affected by the COVID-19 outbreak. The President is expected to sign this bill. Below is a summary of the bill’s main provisions.
Temporary Expansion of Family and Medical Leave
Under the new bill, employers with fewer than 500 employees would be required to provide up to 12 weeks of job-protected leave, ten weeks of which would be paid at a rate of no less than two-thirds of the employee’s usual rate of pay. Leave would be for “qualifying need related to a public health emergency.” The bill defines qualifying need as saying “the employee is unable to work (or telecommute) due to a need for leave to care for [their child]” if their school or child care provider is unavailable, “due to a public health emergency.” The bill further defines a “public health emergency” as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”
The bill also changes the required length of employment from 12 months under the current FMLA to just 30 calendar days. Exemptions are possible under this expansion for employers with fewer than 50 employees if the provision “would jeopardize the viability of the business as a going concern,” subject to approval by the Secretary of Labor’s office. There are additional provisions for employers of fewer than 25 employees; these employers would be required to reinstate employees after their FMLA leave period ends unless the employer is unable to for reasons outlined in the bill.
The first 10 days for which an employee takes leave could be unpaid leave, or the employee could choose to substitute any accrued vacation, personal or sick leave (including in certain instances the emergency paid “sick” leave described below). After the first 10 days, the employer must continue the leave at the two-thirds rate. The bill does put a cap on the amount of the paid leave, per employee, of no more than $200 per day or $10,000 total.
Creation of a Temporary Paid Sick Leave Program
The new bill also enacts a temporary paid sick leave program that requires employers with fewer than 500 employees to provide 80 hours of emergency paid sick leave for full-time employees as well as a special amount for part-time employees, calculated dependent on their hours worked, for COVID-19 related illness or reason.
The emergency paid sick leave could be used in any of the following circumstances:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is caring for a son or daughter where the school or place of care of the son or daughter has been closed or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
- The employee is experiencing any other substantially similar condition specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.
The required paid leave ends with the employee’s next scheduled work shift following the end of the qualifying need. The rate is calculated differently depending on the reason for leave, but the bill sets a maximum amount of required sick pay per employee at $511 per day and $5,110 total for a sick employee. In the case of emergency sick leave to care for a family member or child, however, the maximum amount of required sick pay per employee is $200 per day and $2,000 total.
Refundable Tax Credits to Pay for Leave
To help employers with the new provisions, the bill also provides a series of tax credits to employers who are subject to the expanded FMLA and emergency paid sick leave requirements. The amount of the tax credits varies based on the type of leave and would be applied against the employer portion of Social Security taxes for each quarter equal to the “qualifying” paid leave wages paid by the employer.
Free Coronavirus Testing
The bill would also require that group health plans and health insurance issuers of group cover FDA-approved COVID-19 diagnostic testing products. The mandated coverage must be provided without “any cost sharing (including deductibles, copayments and coinsurance) requirements or prior authorization or other medical management requirements.”
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