H.R. 6201, FAMILIES FIRST CORONAVIRUS RESPONSE ACT

H.R. 6201

A Notice to all Employers Regarding:

• New Legislation: Emergency Paid Sick Leave Act
• Emergency Family Medical Leave Expansion Act

New Legislation:  Emergency Paid Sick Leave Act

Effective Date:  This Act and the requirements of this Act will take effect April 1, 2020.

Employer Requirements:  An employer must provide each employee paid sick leave to the extent that the employee is unable to work or telework due to a need for leave because of one (or more) of the following:

1. The employee is subject to a Federal, State, or Local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in subparagraph (2).
5. The employee is caring for a son or daughter if the school or place of care for the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of heath and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Eligible Employees:  For purposes of this Act, the term “employee” means an individual who is:

1. An employee as defined by the Fair Labor Standards Act (“FLSA”) (29 U.S.C. § 203e)), who is not covered under sub (E) or (F) including such employee of the Library of Congress, except that a reference in such section to an employer shall be considered to be a reference to an employer described in clauses (i)(I) and (ii) of paragraph (5)(A); or an employee of the Government Accountability Office;
2. A State employee described in § 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. § 2000e-16(c));
3. A covered employee, as defined in § 101 of the Congressional Accountability Act of 1995 (2 U.S.C. § 1301) other than an applicant for employment;
4. A covered employee, as defined in 3 U.S.C. § 411(c);
5. A Federal office or employee covered under sub-chapter (V) of Chapter 63 of 5 U.S.C. § 2101(1).

Covered Employer:  The term “covered employer” means:

• Any person engaged in commerce or in any industry or activity affecting commerce that:
  • In the case of a private entity or individual, employs fewer than 500 employees; and,
  • In the case of a public agency or any other entity that is not a private entity or individual, employs 1 or more employees.
• Includes:
  • Any person acting directly or indirectly in the interest of an employer in relation to an employee in relation to the definition of “employee” within the FLSA; and,
  • Any successor in interest of an employer.
• Includes any “public agency” as defined by subsection (3)(x) of the FLSA; and
• Includes the Government Accountability Office and the Library of Congress.

Duration of Sick Leave:  Depending whether an employee is full-time or part-time, an employee is entitled to:

• Full-time Employees: 80 hours (or 2 weeks);
• Part-time Employees: the number of hours that such employee works, on average, over a 2-week period
• Special Note: Any employee, regardless of how long the employee has been employed by the employer, may take paid sick leave as long as the employee meets one of the six requirements listed above under “Employer Requirements.”

Paid Sick Time:  Paid sick time means an increment of compensated leave that:

• Is provided by an employer for use during an absence from employment; and,
• Is calculated based on the employee’s required compensation (see below), and the number of hours the employee would otherwise be normally scheduled to work.

Required Compensation for Employees:  A employee’s required compensation shall not be less than the greater of the following:

• The employee’s regular rate of pay;
• The minimum wage rate under the Fair Labor Standards Act of 1938; or,
• The minimum wage rate in effect for such employee in the applicable State or locality, whichever is greater, in which the employee is employed.
• Special Note: The total amount of compensation any employer must provide to any single employee for leave taken for the reasons listed above under “Employer Requirements” is limited to $511 per day, or $5,110 in the aggregate.

Required Compensation for Part-Time Employees Whose Schedule Varies Week to Week:  A part-time employee whose schedule varies week to week, to such extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee would have worked if he/she had not taken paid sick leave, the employer should use the following:

• A number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes sick leave, including hours for which the employee took leave of any type.
• If the employee did not work over a 6-month period, then the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Required Compensation for Employees Caring for Family Members under subsection (4), (5), or (6) under “Employer Requirements” above:  The employee’s required compensation shall be 2/3 of the employee’s regular rate of pay.

• Special Note: The total amount of compensation any employer must provide to any single employee for leave taken for the reasons listed above under “Employer Requirements” is limited to $200 per day, or $2,000 in the aggregate.

Employer’s Termination of Paid Sick Leave:  Paid sick leave provided to an employee under this Act ends with the beginning of the employee’s next scheduled work shift immediately following the termination of the need for paid sick leave.

Employer Prohibitions:  An employer may not require an employee who has taken paid sick leave to:

1. Find a replacement employee to cover their hours during their paid sick leave; or,
2. Use other paid leave provided by the employer to the employee.

Additionally, it is unlawful for an employer to discharge, discipline, or in any manner discriminate against any employee who:

1. Takes leave under this Act;
2. Has filed any complaint or instituted any proceeding under or related to this act (including enforcement of this Act); or,
3. Has testified or is about to testify in any related proceeding.

Regulatory Authorities:  The Secretary of Labor has the authority to issue regulations for good cause to exclude the following individuals from parts of this Act:

1. Certain health care providers and emergency responders; and,
2. Small businesses with fewer than 50 employees from requirements under subsection (5) under “Employer Requirement” above if the imposition would jeopardize the viability of the business as an ongoing concern.

Termination of this Act:  This act and the requirements of this Act expire on December 31, 2020.

The Emergency Family and Medical Leave Expansion Act

* Please Note:  This section appears to apply solely to COVID-19 illness and not all other illnesses covered by the FMLA *

Effective Date:  This Act and the requirements of this Act will take effect April 1, 2020.

Coverage:  The Emergency Family and Medical Leave Expansion Act applies to all employers with less than 500 employees.  This includes any “public agency” engaged in commerce or in an industry or activity affecting commerce as defined under the FMLA (1993) (29 U.S.C. 201-2654).

• Special Note: Under the FMLA the term “eligible employee” does not include any Federal office or employee covered under 5 U.S.C. Sub. (V) (excluding any individual employed by the government of the District of Columbia any individual employed on a temporary or intermittent basis, and any employee of the Government Accountability Office or the Library of Congress).

Eligible Employees:  An eligible employee means an employee who has been employed for at least 30 days by the employer.

• The Emergency Family and Medical Leave Expansion Act is only applicable to employees who are unable to work (or telework) due to a need to care for his/her child(ren) under the age of 18 if his/her child(ren)’s school or place of care has been closed or his/her child(ren)’s child care provider is unavailable due to an emergency with respect to COVID-19 declared by federal, state, or local government.

Regulatory Authorities:  The Secretary of Labor has the authority to issue regulations for good cause to exclude the following individuals from parts of this Act:

1. Certain health care providers and emergency responders as an “eligible employee” under the Public Health Emergency Leave; and,
2. Small businesses with fewer than 50 employees from requirements under the Paid Sick leave

Unpaid Leave for Initial 10 Days:  The first ten days that an employee takes leave under the Public Health Emergency Leave may consist of unpaid leave.

• Special Note: The employee may choose to substitute or use any unaccrued vacation leave, personal leave, or medical/sick leave for unpaid leave under the Public Health Emergency Leave.

Paid Leave for Subsequent Days:  An employer must provide paid leave for each day of leave under the Public Health Emergency Leave that an employee takes after taking the initial 10 days of leave.

Required Compensation:  Paid leave under the Public Health Emergency Leave must be calculated based on:

• An amount not less than 2/3 of an employee’s regular rate of pay and determined by subsection (7)(e) of the FLSA; and,
• The number of hours the employee would otherwise be normally scheduled to work.
• Special Note: In no event shall such paid leave exceed $200/day and $10,000 in the aggregate.

Required Compensation for Part-Time Employees Whose Schedule Varies Week to Week:  A part-time employee whose schedule varies week to week, to such extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee would have worked if he/she had not taken paid sick leave, the employer should use the following:

• A number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes sick leave, including hours for which the employee took leave of any type.
• If the employee did not work over a 6-month period, then the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

NOTE:  We will be updating this post with more information soon, so please keep checking back for more information.