The COVID-19 pandemic has created a number of workplace challenges for employers and their employees. In an effort to address some of these challenges, Congress is in the process of implementing emergency measures. On Friday, March 13, the House of Representatives passed the Families First Coronavirus Response Act. However, the House of Representatives will issue a revised bill, likely on Monday, March 16, to incorporate “technical” changes that were not incorporated into the initial version. While it is too soon to know what the final version of the bill will look like and when it would go into effect, the House passed the initial version with bipartisan support. If there are no substantial changes to the bill, many employers will be required to adopt revised leave policies to deal with this crisis and to provide paid leave to employees impacted by COVID-19. Although the bill is not yet law, it is prudent for employers to begin the process of understanding the potential requirements if the bill becomes law and how that alters employer strategies for responding to COVID-19.
If enacted into law, the Families First Coronavirus Response Act would make significant COVID-19-related changes to the Family and Medical Leave Act (“FMLA”). This section of the law, entitled the Emergency Family and Medical Leave Expansion Act, applies to employers with fewer than 500 employees and requires these employers to provide employees who have been employed for at least thirty days with up to twelve weeks of job-protected leave in order to (1) adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus if the “employee is unable to both perform the functions of the position of such employee and comply with such recommendation or order”; (2) “care for an at-risk family member who is adhering to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus”; and (3) “care for a child of an employee if the child’s school or place of care has been closed, or the child-care provider is unavailable, due to a coronavirus.” In the case of an employee who is unable to come to the workplace because of his/her own potential exposure or symptoms, it appears that the ability to permit remote work would preclude the application of this leave. This is particularly relevant since, following the first two weeks of this leave, employers must continue to pay the employee at least two-thirds of the employee’s ordinary rate of pay.
If this initial version of the bill is enacted it will, at least with respect to COVID-19, expand the FMLA to employers with under fifty employees (though the Department of Labor could exempt these businesses where this law could threaten the viability of the business) and make ten of the twelve weeks of FMLA paid. Although it is not yet clear, it seems that COVID-19-related leave taken under these expanded FMLA provisions would count towards the overall twelve-week requirement of the FMLA, though that may be subject to further regulation and development of the law. In addition, the law does permit employers to recoup at least some of the benefits they may pay under this provision; employers would receive a tax credit against Social Security taxes for benefits paid, but these reimbursements are capped for each individual employee at $200 per day and $10,000 in aggregate.
In addition, the Families First Coronavirus Response Act also includes emergency paid sick leave for employees displaced by COVID-19. This section, known as the Emergency Paid Sick Leave Act, requires employers with fewer than 500 employees to provide all employees with two weeks of paid sick leave paid at their regular rate if (1) the employee has to self-isolate because he/she is diagnosed with COVID-19, (2) the employee is obtaining a diagnosis or care if experiencing COVID-19 symptoms, (3) the employee is complying with the recommendation or order of a public official or a health care provider to not go to work because the employee poses a risk of exposure, (4) the employee is caregiving for an individual who is diagnosed and/or under quarantine for COVID-19, and (5) the employee is engaged in caregiving because of a COVID-19-related closing of a school or other unavailability of childcare. For purposes of this law, full-time employees will receive 80 hours of leave and part-time employees will receive leave in the amount of hours that they would typically work in two weeks. Employers are also prohibited from requiring employees to utilize or exhaust any other form of leave before accessing paid leave benefits under the Emergency Paid Sick Leave Act. All benefits provided to employees under the Emergency Paid Sick Leave Act would be refunded, at a limit of $200 per day per employee, to employers though a tax credit against Social Security taxes.
There are uncertainties surrounding this legislation and what the final version of this law will ultimately require of employers. However, prudent employers should continue the process of developing their plans in response to this emergency with the expectation that some form of paid leave and expanded job protection will apply.
ABOUT RUSSELL BERGER
As an accomplished labor and employment attorney and Practice Group Director, Mr. Berger provides business counsel to employers on employee matters and is well-versed in litigating in both state and federal courts. Russell Berger is the trusted legal counsel every business owner needs to feel confident in their decision-making and secure with their assets. As a Practice Group Director at Offit Kurman, Mr. Berger has direct experience with managing other managers, which he draws from in advising his clients. He is a pragmatic problem-solver that works efficiently and tirelessly to present his clients the best possible solutions to their most complicated issues. He represents employers, businesses, and professionals in employment disputes across the nation.
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