The U.S. House of Representatives passed the Families First Coronavirus Response Act (the “Act”) with bi-partisan support in the wee hours of the morning on Friday, March 14, 2020. The Act provided for expanded FMLA benefits (the “FMLA Expansion Act”), for reasons related to government quarantine orders, employee exposure to the coronavirus, and care of family members who are affected by the coronavirus or resulting school or daycare closures. The Act also provided both full- and part-time employees impacted by coronavirus with paid sick leave (the “Paid Sick Leave Act”).

A mere forty-eight hours later, however, the House was back at it, revisiting the Act and passing a number of corrective amendments to the Act, some of which are less supportive of workers affected by fallout from the ongoing public health crisis than the original bill. Amendments to the FMLA Expansion Act and Paid Sick Leave Act are highlighted below. Keep in mind that the Act would still need to be passed by the Senate, which may take it under consideration as early as today, March 18, 2020, before becoming law.

Emergency Family and Medical Leave Expansion Act (“FMLA Expansion Act”)

The House reduced the number of leave days that must be exhausted before paid FMLA leave becomes applicable.

• As originally passed, the first 14 days of employee leave under the FMLA Expansion Act were unpaid.
• As amended, the House reduced the unpaid FMLA leave time period to 10 days.
• An employee still may voluntarily choose to substitute accrued vacation, personal leave, or sick leave for any or all the first 10 days of unpaid leave.
• Employers may not require the employee to use such leave.

The House caps the rate of paid FMLA leave required of employers under the Act.

• As originally passed, the Act mandated that employers were required to compensate employees all paid FMLA leave at a rate of no less than two-thirds of the employee’s regular rate of pay under the Fair Labor Standards Act for the number of hours the employee would usually be scheduled to work.
• As amended, the Act caps the amount of paid FMLA leave to no more than $200 per day, with a cumulative pay limit of $10,000.

Emergency Paid Sick Leave Act (“Paid Sick Leave Act”)

The events and circumstances that trigger employer paid sick leave under the Paid Sick Leave Act remain unchanged under the amendments.

• Employers are required to provide an employee with paid sick time in order to:
  • self-isolate because the employee is diagnosed with coronavirus
  • obtain a medical diagnosis or medical care for symptoms of coronavirus
  • comply with a recommendation or order of a public official that the employee’s presence would jeopardize the health of others because the employee has been exposed to coronavirus or is exhibiting its symptoms
  • care for or assist an employee’s family member who is experiencing or subject to one of the foregoing bases, or
  • care for the employee’s child, if the child’s school has been closed or the child’s day care is closed or otherwise unavailable due to coronavirus

The number of hours of paid sick leave available to an employee under the Paid Sick Leave Act also remains the same.

• Full-time employees are entitled to 80 hours of paid leave.
• For part-time employees, paid leave equal to the number of hours the employee works, on average, during a two-week period.

The rate and total amount of pay for paid sick leave are capped by the House amendments.

• The rate of paid leave for the first three bulleted reasons above is capped at $511 per day, with total paid leave limited to $5,110.
• Paid leave taken in conjunction an employee’s care for a family member or employee’s child when school or daycare is closed for public health concerns, is now limited to $200 per day and $2,000 in total leave benefits.

What effect does the Paid Sick Leave Act have on Employers with Existing Paid Leave Policies?

• Paid leave under the Paid Sick Leave Act is in addition to any paid leave an employer already makes available to employees.
• Employers may not change their existing paid leave policy for the purpose of mitigating the impact to the employer of the Paid Sick Leave Act.
• Employers may not require employees to use employer-provided paid sick leave before utilizing paid sick leave mandated under the Paid Sick Leave Act.

How quickly does paid leave under the Paid Sick Leave Act become available for use by eligible employees?

• Paid Sick Leave Act leave becomes available for immediate use by the employee, regardless of how long the employee has been employed.

Does the Paid Sick Leave Act penalize employers who violate the above requirements?

• The U.S. Department of Labor is responsible for administration of the Paid Sick Leave Act. An employer who fails to comply with its paid sick leave requirements is subject to the same penalties as provided for a violation of the minimum wage requirements under the Fair Labor Standards Act.
• Further FLSA-equivalent penalties will be imposed against an employer who discharges, disciplines, or otherwise discriminates against an employee for use of paid sick leave provided by the Paid Sick Leave Act, or for retaliating against an employee who files a complaint or initiates proceedings for violation of the Paid Sick Leave Act.

The U.S. Senate is expected to take up its discussions of the Act as early as Wednesday, March 18, 2020. Indications seem to be that the Act is viewed by both political parties as not nearly generous enough to employees, considering the growing exigencies attendant to the coronavirus pandemic. We will continue to provide you with updates on the Act as the Senate deliberations get underway.