On March 14, 2020, the United States House of Representatives passed bipartisan legislation authorizing funding for supplemental food relief and testing related to the Covid-19/Coronavirus pandemic. While this bill does not take effect until approved by the Senate and signed into law by the President, as of March 15, 2020, it seems likely that a version substantially similar to the current bill will become effective March 16, 2020 or soon thereafter.
The key components of this bill that will affect employers and employees relate to expanded applicability of the Family and Medical Leave Act (“FMLA”) for Coronavirus-related leave and a new paid sick leave requirement. These provisions of the bill will apply (at least through December 31, 2020) to employers who may not currently offer paid sick leave or be subject to FMLA; therefore, understanding these new requirements is essential.
The Emergency FMLA Expansion Act provisions of the bill amend the FMLA to include a new basis for taking FMLA leave: “Qualifying need related to a public health emergency.” This is defined as leave taken in order to:
- Comply with a medical requirement or recommendation to quarantine due to exposure to or symptoms of Covid-19;
- Care for a family member who is adhering to a requirement or recommendation described above; and
- Care for an employee’s child if the school or childcare provider is closed or unavailable for reasons related to Covid-19.
Additionally, for purposes of the leave taken due to Coronavirus-related reasons, the bill both expands and narrows the scope of employers’ subject to FMLA – the above leave must be provided by employers with 500 or fewer employees. The scope of eligible employees is also greatly expanded to now include all employees who have been on the payroll for at least 30 days.
The employer must offer job-protected leave to an employee who meets the above criteria. During the first 14 days of leave, the leave may be unpaid, though an employee may be permitted to use paid leave during this time. After those first two weeks, the employer must offer paid FMLA leave at a rate no less than two-thirds of the employee’s usual salary/wages.
Certain exceptions apply under this new expanded FMLA. First, employees of certain health care providers may not be eligible for this leave. Second, employers with fewer than 50 employees may be exempt if certain hardship criteria applies – this may be the subject of future regulations issued by the Department of Labor.
Separately, the bill requires employers with fewer than 500 employees to provide up to two weeks of paid sick leave to employees who require leave for Covid-19 related reasons, including isolating at home or caring for a child where a school or childcare provider is closed. These provisions of the bill bar employers from retaliating against employees who take this paid leave and restrict employers from modifying their policies to eliminate existing paid leave options or requiring employees to exhaust other paid leave before taking paid leave under the new law. Finally, the bill includes a notice requirement, and it indicates that the DOL will provide a sample notice in the next two weeks.
Employers should recognize that we are in uncharted waters, and the new law (if/when it takes effect) will almost certainly be amended and clarified through additional legislation and regulations. Expect to receive questions from employees that may not have easy answers and review existing policies to see how they will be affected by the new rules.