Employment Law Alert

COVID-19 Legislation Will Impact Employers’ Leave Polices

Mar 16, 2020

COVID  square

Image Source – Shutterstock

The Emergency Families First Coronavirus Response Act (H.R. 6201) passed The U.S. House of Representatives early Saturday, March 14, 2020, and includes a number of provisions that will directly impact employers, in addition to public health measures.

The bill is expected to be taken up by the U.S. Senate immediately, which may make changes to the House bill.  While we await further action by the Senate and ultimately the President, the following summarizes the key provisions of the legislation that will impact employers.

Amendments to FMLA

The legislation amends the Family and Medical Leave Act by expanding the circumstances that qualify for leave to address the current coronavirus health threat. However, as currently drafted, the House legislation expanding FMLA applies only to employers with fewer than 500 employees.

The legislation would amend the FMLA as follows:

  • Employees employed for at least 30 days will be eligible for FMLA leave in these circumstances:
    • To comply with a recommendation or order by a public health official or a healthcare provider to stay home because the physical presence of the employee at work would jeopardize the health of others; but only if the employee is simultaneously unable to perform his/her job functions and comply with the quarantine recommendation or order (i.e., if teleworking is feasible then the leave is not required);
    • To care for a family member who must be quarantined due to exposure to or symptoms of coronavirus;
    • To care for a son or daughter under 18 years of age do to closure of the child’s school or unavailability of a regular child care provider.
  • The first two weeks of FMLA leave for the above purposes may be unpaid, but thereafter employers must provide paid FMLA leave for these purposes, at a rate of no less than 2/3 of the employee’s regular rate of pay.
  • Employees may elect to substitute paid leave (such accrued vacation or PTO) for the two weeks of unpaid FMLA leave, but employers may not require such substitution.
  • The FMLA’s normal job protection rules will apply to leave taken for the above purposes, except for employers with fewer than 25 employees, where the employee’s position does not exist due to economic conditions or other changes caused by the public health emergency.
  • Employees must give notice of leave for the above purposes only where it is foreseeable, and then only as is practicable.

All of these amendments to the FMLA would take affect 15 days after the legislation is enacted, and would sunset on December 31, 2020.

Emergency Paid Sick Leave

Another section of the House bill would require employers to provide each employee two weeks of paid sick time, for any of the following purposes:

  • To self isolate because the employee is diagnosed with coronavirus;
  • To obtain a medical diagnosis or care if the employee is experiencing the symptoms of coronavirus;
  • To comply with a recommendation or order by a public official or a healthcare provider on the basis that the physical presence of the employee at work would jeopardize the health of others ( due either to the exposure of the employee to coronavirus or the employees exhibition of symptoms of coronavirus);
  • To care for a family member who is quarantined due to a diagnosis or symptoms of coronavirus; or
  • To care for a child whose school is closed or whose regular care provider is unavailable due to coronavirus.

Like the amendments to the FMLA, the paid sick leave provisions in the House bill apply only to employers with fewer than 500 employees. The paid sick leave protections apply to employees regardless of how long they have been employed. The amount of pay for the mandated sick leave must be the employee’s full regular rate of pay, except when leave is taken to care for a family member or a child whose school is closed or care is unavailable, in which case pay must be at least 2/3 of the employee’s regular rate.

The paid sick leave required under the new legislation would not carry over from year to year, and the requirements would expire on December 31, 2020.

Unemployment Benefits and Tax Credits

The House bill also would provide additional funding for employee unemployment benefits and would allow employers various tax credits to offset the cost of the mandatory paid sick leave.

Fox Swibel will continue to monitor this legislation and stands ready to advise clients during this unusual time.  If you have questions about employers’ obligations and best practices in light of COVID-19, please contact Fox Swibel’s employment law department leaders, Steve Brenneman or Kelly Smith-Haley, or the Fox Swibel attorney with whom you regularly work.

This article was co-written by Steven L. Brenneman  and Kelly Smith-Haleywho are Chair and a Partner, respectively, of the Employment Law Group at Fox Swibel and editors of the Illinois Employment Law Letter. Illinois-Employment-Law-Letter-Logo
Steve Brenneman Headshot
Kelly Smith Haley Headshot