Labor, Employment, Benefits & Immigration

On March 16, 2020, the United States House of Representatives passed a “corrected” version of the Families First Coronavirus Response Act (FFCRA), which made some notable changes to the provisions impacting employers.

The FFCRA’s major requirements for employers relate to paid leave, as follows:

• Emergency Paid Sick Leave (EPSL).  Private employers with fewer than 500 employees and all public employers must provide 80 hours of paid leave to all full-time employees who need to miss work because of illness or quarantine, or to care for family members who are ill, quarantined or are children under the age of 18 without school or child care because of the COVID-19 pandemic. Part-time employees are also entitled to two weeks pro rata paid leave. This mandatory paid leave is in addition to any other paid leave already provided to such employees. Notably, EPSL would not be required just because of a government shut down or office closure – an employee would still need to demonstrate one of the eligibility factors.
• Expanded Family Medical Leave (FMLA). Employers with fewer than 500 employees will be required to provide paid FMLA leave to employees who have been employed for at least 30 days in certain situations related to the COVID-19 pandemic. The first two weeks may be unpaid but thereafter, the leave must be paid at a rate of two-thirds of the employee’s regular rate of pay.

Many had raised concerns about the impact the original legislation would have on small businesses, and the House seems to have addressed some of those concerns, though most of the significant obligations regarding EPSL and paid FMLA remain.  The revised bill does still contain language providing authority to the Secretary of Labor to exempt employers with fewer than 50 employees from the EPSL and expanded FMLA requirements, if complying would jeopardize the business as a going concern, and to exclude certain healthcare providers and emergency responders.

The major revisions for employers in the updated FFCRA are as follows:

• To be eligible for either EPSL or expanded FMLA, an employee must demonstrate that they are unable to "telework" or work remotely.
• Eligibility for the expanded, paid FMLA has been limited to absences related to the need to care for a child who is under the age of 18 and unable to go to school or other childcare because of the public health emergency. The prior eligibility categories related to the employee’s own illness or quarantine, and/or need to care for a family member who is ill or quarantined, have been removed.
• The portion of FMLA leave that may be unpaid was reduced from 14 days to 10 days, though employees may still substitute available PTO, including EPSL, for the unpaid 10 days. Thereafter the remaining FMLA must be paid at 2/3 the employee’s regular rate of pay.
• Employers may elect to exclude certain healthcare providers and emergency responders from entitlement to paid FMLA and EPSL.
• The reasons why an employee would be entitled to EPSL now include: (1) the employee is subject to a quarantine or isolation order related to COVID-19; (2) the employee has been advised by a healthcare provider to self-quarantine because of COVID-19; (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) the employee is caring for an individual subject to or advised to quarantine or isolation; (5) the employee is caring for a child whose school or childcare is closed or unavailable due to COVID-19; or (6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.
• The prohibition on employers modifying their existing paid leave policies following the passage of the legislation has been removed.

The United States Senate is now expected to take up this revised legislation this week. It remains unclear whether additional changes will be made, as the situation is extremely fluid and changing minute to minute. Employers should nevertheless prepare, as it is anticipated that some version of this legislation will be signed into law in the very near future.

A link to our original detailed summary of employers’ obligations under the FFCRA can be found here.

This alert was written by Stephanie Baron, a lawyer in the Labor, Employment, Benefits & Immigration practice group at Miles & Stockbridge.

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