On Monday, March 16, the House proposed new legislation that would make significant changes to the emergency legislation proposed only a few days ago. Again, this is only a first step in the legislative process, but demonstrates the extreme challenges facing employees as the landscape continues to shift on a daily, sometimes, hourly basis.
Legislators state the new proposal “corrects” some of the provisions in the earlier bill, but the impact of those “corrections” is significant.
Emergency Family and Medical Leave Act
The revised bill, which applies to private-sector employers with less than 500 employees and covered public-sector employers, still requires that these employers provide up to 12 weeks of job-protected FMLA leave to those employees who have been on the payroll for more than 30 days “for qualifying need related to a public health emergency”, but the bill significantly narrows the definition of “qualifying need” to circumstances where an employee is unable to work or telecommute in order to care for a minor child where the child’s school or child care provider is closed or otherwise unavailable due to the public health emergency.
The revised bill also reduces the unpaid period from 14 days to 10 days. An employee can choose to substitute accrued vacation, personal, or sick leave, but the employer cannot require them to do so.
After the initial unpaid period, the FMLA leave will be paid at two-thirds of the employee’s regular rate, but the under revised bill, there would be daily limit of $200 and total cap at $10,000.
Provisions allowing the Secretary of labor to exclude health care providers and emergency responders from the definition of employees eligible for emergency leave, and to exempt employers with fewer than 50 employers from the bill’s requirements if such leave would result in the employer becoming non-viable, remain.
Emergency Paid Sick Leave
Similar to the Emergency FMLA, the Emergency Paid Sick Leave component still applies to private-sector employers with less than 500 employees and covered public-sector employers and allows full-time employees to take up to 80 hours of paid sick leave (pro-rated for part-time). It also allows the employer to exclude health care providers and emergency responders from coverage and allows the Secretary of Labor to exempt employers with fewer than 50 employers from the bill’s requirements.
Significantly, the revised bill limits the paid leave benefit to $511 per day, $5,110 in total if leave is taken because: (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 because of COVID-19; (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. The limitation drops to $200 per day, $2,000 in total where leave is taken because (1) the employee is caring for an individual subject or advised to quarantine or isolation; (2) the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or (3) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
The December 31, 2020 expiration dates for both components remains (unless further extended).
What’s Next?
In addition to the new proposal by the House, the Senate is also taking up its own proposed measures, which would have to be reconciled with any House version. The timeline is unclear.
The labor and employment law attorneys at Berchem Moses PC will continue to keep clients apprised of the latest changes and are prepared to help you navigate these difficult times.