In Response to COVID-19, Congress Makes Changes to Federal Sick Leave Requirements
By: Michael G. Swansburg, Jr.
Earlier this week, President Trump signed into law H.R. 6201, the “Familes First Coronavirus Response Act,” making substantial changes to federal food assistance programs and employee leave standards. As the law’s title indicates, Congress and the President intended for H.R. 6201 to provide emergency protections and relief to individuals impacted by the recent COVID-19 Coronavirus outbreak.
For employers and employees in particular, H.R. 6201 can be summed up as doing the following: (1) amending the federal Family and Medical Leave Act (“FMLA”) to account for the “public health emergency” related to the outbreak; and (2) requiring certain employers to provide paid sick leave to affected employees.
First, Division C of H.R. 6201, titled the “Emergency Family and Medical Leave Expansion Act,” provides for “public health emergency leave” under the FMLA by first amending the definition of an “eligible employee” under 29 U.S.C. §§ 2611(2)(A) and (B)(ii) in the context of leave taken due to a public health emergency related to the outbreak to mean “an employee who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested.” Section 3102 of H.R. 6201 further re-defines the term “employer” under 29 U.S.C. § 2611(4)(A)(i) to include any person engaged in commerce who employs “fewer than 500 employees” in lieu of the current standard of “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year” in the context of leave taken due to a public health emergency related to the outbreak. It also adds a new term to the list of FMLA-qualifying events under 29 U.S.C. § 2612(a)(1)—"Qualifying Need Related to a Public Health Emergency”—which occurs when an employee “is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavalable, due to a public health emergency.” And it enumerates standards for paid leave related to the use of the FMLA in the event of a public health emergency, among other requirements.
Importantly, H.R. 6201 does not alter the definition of “eligible employees” or the employer threshold under traditional FMLA scenarios like family care or self care unrelated to the outbreak. And the amendments to 29 U.S.C. § 2612(a)(1) that account for the outbreak, specifically those enumerated in Section 3102 of H.R. 6201, also contemplate a hard expiration date of December 31, 2020.
Notwithstanding these provisions, Division E of H.R. 6201, specifically Section 5102, requires employers to provide employees “paid sick time” to the extent that the employee is unable to work (or telework) due to a need for leave because the employee (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) is caring for an individual who is subject to a quarantine or isolation order; (5) is caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions; or (6) is experiencing “any other substantially similar condition” as identified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Moreover, this section further identifies the duration of paid sick leave as eighty (80) hours for full-time employees or the number of hours equal to the number of hours that an employee works over a two-week period for part-time employees. Employers who fail to provide this leave may be subject to the penalties prescribed for minimum-wage violations under the federal Fair Labor Standards Act. However, Congress did not intend for the paid-leave requirement to become permanent, adding a sunset provision for December 31, 2020, under Section 5109. And, finally, Division G of H.R. 6201 provides for certain payroll tax credits for employers who pay out sick leave under this new law.
To be sure, the COVID-19 Coronavirus outbreak has already tested the American economy, pushing employers and employees into difficulties unimaginable even two months ago. Whether these relief measures help or hamper the country’s commercial interests and workforce remains to be seen. But employers, in particular, who are already jittery of the long-term impact this unpredictable force of nature might have on them should prepare for the possible short-term financial impact of this new law and its impact on employees who might be out of work for some time.