House revises Families First Coronavirus Response Act

Posted March 18, 2020

Late Monday, 3/16/2020, the House made amendments to its Family First Corona Response Act (FFCRA) before sending it to the Senate. The bill still contains a poster requirement.

The measure sill includes provisions for employee leave for employers with fewer than 500 employees, but they are not as robust. The leave provisions would become effective not later than 15 days following enactment and would run through December 31, 2020. The leave provisions currently are as follows:

Paid sick leave during the C-19 emergency

Employers must provide full-time employees with 80 hours of paid sick time. Part-time employees would receive a number of hours of paid sick time equal to the number of hours the employee works, on average, over a two-week period.

Employees who are unable to work or telework may use the paid sick leave because the employee:

• Is subject to a federal, state, or local quarantine or isolation order related to C-19;
• Has been advised by a health care provider to self-quarantine because of C-19;
• Is experiencing symptoms of C-19 and is seeking a medical diagnosis;
• Is caring for an individual subject or advised to quarantine or isolation;
• Is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to C-19 precautions; or
• Is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Failure to provide the leave as required would be a violation of the federal Fair Labor Standards Act. Employers may not change paid leave policies they had on the day before the date of enactment.

Expansion of the Family and Medical Leave Act

Similar to the paid sick leave, the expansion of the FMLA would apply to employers with fewer than 500 employees, become effective not later than 15 days following enactment, and run through December 31, 2020.

The extended FMLA leave would apply to employers with one or more employees, rather than 50.

Employees would be eligible if they have worked at least 30 days, as opposed to the usual 12 months.

Family members would be expanded from spouse, parent, and child to include the following:

• Parents-in-law and domestic partner’s parents;
• Domestic partners; and
• An individual who is pregnant, a senior citizen, disabled, or who has accessibility or functional needs and is a child, next of kin, grandparent, or grandchild of the employee.

The reasons for leave would also be expanded to allow an employee to take leave because the employee is unable to work (or telework) due to a need for leave to care for a child if the school or daycare has been closed or the childcare provider is unavailable due to a public health emergency.

The first 10 days of leave are generally unpaid, but the employee may elect to substitute accrued paid leave. Employers may not, however, require substitution in the first 10-day period.

After the first 10 days, the employer must provide paid leave at least 2/3 the employee’s regular rate of pay. Variable hourly employees pay is based upon an average looking back six months or what the employee would have worked if the employee had not worked over such period. Employees need not be paid more than $200 per day or $10,000 total.

Employees are required to provide notice of the need for leave, when foreseeable, for school closing or childcare issues.

Employers with 25 or more employees must restore employees to their position after leave. Employers with fewer than 25 employees do not need to restore employees if the job no longer exists due to the employer’s economic conditions, as long as the employer makes a good faith effort to try to restore the employee to an equivalent position.

Reimbursement provisions through a tax credit

Private employers providing the paid leave are eligible for reimbursement through a tax credit. The reason the measure limits leave to employers with fewer than 500 employees is to help keep tax credits from going to big firms that already provide paid leave.

What’s next

The Senate is expected to take up the bill in the next couple days and may make changes, so the final version might have different provisions than listed here.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.