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HR 6201 Creates new FMLA Entitlement and Paid Leave for Employees

March 20, 2020

The Families First Coronavirus Response Act, HR 6201, was signed into law last night by the President. There are two components to the law. The following is a summary of both sections of the law. We will continue to provide updates as they become available

The Public Health Emergency ‎Leave Law

This law applies to all employers with fewer than 500 employees (that isn’t a typo- the ordinary federal FMLA only applies to employers with 50 or more employees). The law allows the ‎Secretary of Labor to issue regulations to exclude certain health care providers and emergency responders from eligibility and to exempt businesses with fewer than 50 ‎employees if the obligations would jeopardize the viability of the business. Since this law becomes effective 15 days from enactment (last night), we do not know if those regulations will be issued before it becomes law.

The ordinary eligibility provisions for coverage under the FMLA do not apply. Employees are covered if they have been employed for at least 30 days – they do not have to meet the ordinary requirement of working at least 1,250 hours with the employment of at least 12 consecutive months.

To qualify, the employee must be unable to work (or work remotely) because he/she needs to care for his/her minor child if the child’s elementary ‎or secondary school or place of care has been closed or if the child’s regular paid care provider is ‎unavailable because of an emergency declared by a federal, state, or local authority with respect to ‎the coronavirus.

Employees are ‎eligible for the same amount of FMLA leave as under the current FMLA- i.e. up to 12 weeks. However, the difference is that this leave is paid after 10 days. (It should also be noted that this law does not change the Maine FMLA- so it is possible an employee can take the 12 weeks under this FMLA (all paid beyond 10 days), and then an additional 10 weeks under Maine FMLA (unpaid)).‎ The employee can opt to use any accrued paid time ‎off, vacation time, sick leave, or other paid leave during this initial period (including sick leave under ‎the Emergency Paid Sick Leave Act, the other part of the new legislation). ‎

After the first 10 days of this leave, the ‎employer has to pay the employee at a rate of 2/3 of the employees’ regular rate of pay for the number of hours the employee would ‎normally be scheduled to work. It caps the total amount to no more than $200 ‎per day and $10,000 in the aggregate. ‎ If an employee works a varied schedule, the employer has to average the employee’s hours worked ‎per day over the previous 6 months or, if the employee has not worked during that period of time, ‎the average daily hours the employee would have been reasonably expected to be scheduled to ‎work when hired.

The law contains the right of restoration to the same or a similar job. However, employers with 25 or fewer employees ‎are exempt from job protection if: 1) the position held by the employee does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by a coronavirus-related emergency declared by a federal, state, or local authority; 2) the employer makes reasonable efforts to restore the employee to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment; and 3) after those reasonable efforts fail, the employer makes reasonable efforts to contact the ‎employee about an equivalent position, if one becomes available, for one year following the ‎conclusion of the coronavirus-related emergency or the conclusion of the 12-weeks of ‎coronavirus-related leave taken by the employee, whichever is earlier.‎

There is a payroll ‎tax credit for covered employers as part of the new law.‎

Emergency Paid Sick Leave Act

This law requires all employers with fewer than 500 employees to provide immediately-‎available, paid sick leave time to all employees, regardless of how long they have been employed.‎ As with the FMLA above, the Secretary of Labor can issues regulations to exempt certain health care providers and emergency responders, as well as small businesses with ‎fewer than 50 employees (where the time is taken to care for a child where the child’s school has ‎been closed or childcare has become unavailable).

This leave is available for the following reasons arising out of the pandemic:

  • to self-isolate or seek medical diagnosis or treatment following diagnosis or exhibition of ‎symptoms,

  • to follow health care or public official recommendation or orders,

  • to care for family ‎members who are self-isolating or seeking medical diagnosis or treatment, or

  • to care for children ‎following school closures or unavailability of childcare.

Notably, it does NOT appear that this leave is available if the employee is not working because the employer has prohibited the employee from reporting to work because of virus concerns. This will likely be further addressed in the expected regulations. Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled ‎to sick leave equivalent to those hours the employee works, on average, over a 2-week period.‎

If the leave is taken for the employee’s own self-isolation, medical diagnosis, or treatment, the ‎employee is entitled to paid leave at 100% of his or her regular rate of pay. If leave is ‎taken to care for a family member or child, employers only are required to provide leave at 2/3 ‎the regular rate of pay.

There is a daily and aggregate cap on the totals:

  • The sick leave cannot exceed $511 per day and $5,110 in the aggregate for an employee’s ‎self-isolation, medical diagnosis, or treatment

  • It cannot exceed $200 per day and $2,000 in the ‎aggregate for sick leave taken by an employee to care for a family member or child.‎

If an employee is paid under something other than a typical pay arrangement, the employer is to ‎calculate average daily hours worked similar to under the amended FMLA. The DOL should be issuing guidance to assist with these calculations.

These provisions are in addition to an employer’s existing paid ‎sick leave policies. AND, employers are prohibited from requiring that employees ‎use employer-provided vacation time, sick time, or other paid time off before using paid ‎sick leave under the Sick Leave Act.‎