Families First Coronavirus Response Act - An analysis of House Bill 6201

posted by Neil Klingshirn  |  Mar 14, 2020 4:04 PM [EST]  |  applies to Ohio

On March 19, 2020 the Senate passed the Families First Coronavirus Response Act to address some employment impacts of the coronavirus and COVID-19. It was a much smaller version of the Act that passed in the House and reported on below. It contained the Emergency Family Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both begin April 2, 2020.

EPSLA, paid Sick Leave, will provide the first paid leave. Beginning April 2, 2020, employers must provide 14 calendar days, or two weeks, of sick pay at 100% of an employee's regular rate. Eligible leave that include that for ones own coronavirus, quarantine and caring for another with coronavirus, as well as staying home for children as a result of a coronavirus school closing.

After 14 days of paid sick leave, the Emergency Family Leave Expansion Act, which provides no paid FMLA leave for the first 14 days/two weeks because EPSLA covers that., provides paid leave for 10 more weeks. However, that paid leave is only at 2/3 of the regular rate and eligible leave is limited to care for children home from a closed school.

Here are FAQs that our firm prepared:

https://www.ekrtlaw.com/articles/Paid-Coronavirus-Sick-Leave-and-Emergency-FMLA-FAQs.html
 

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Original report:

On March 14, 2020 the US House of Representatives passed House Bill 6201 and sent it to the Senate with President Trump's endorsement. Known as the Families First Coronavirus Response Act, HB 6201 responds to the economic impacts of the 2020 coronavirus pandemic in the United States.

The Families First Coronavirus Response Act provides for the continuation of SNAP (food stamp) benefits during school closures and creates some remarable, new employment rights. Specifically, the Families First Coronavirus Response Act, if adopted without change by the Senate and signed into law by President Trump, will

1. Create a new OSHA Standard for coronavirus exposure;
2. Require all employers to provide paid sick days for public health emergencies;
3. Create a federally funded "Emergency Paid Leave" benefit under the SSA for days missed due to:
    
   1. COVID-19 related infection,
   2. quarantine,
   3. care for a family member or
   4. an order to stay home because of COVID-19.

Employees are eligible if they earned wages or self-employment income during the 30 days prior to the first emergency leave day. In addition, it appears that they must have at least 14 days of emergency leave before they are entitled to Emergency Paid Leave. Further, employees are not not entitled to Emergency Paid Leave benefits for any day that they were eligible for unemployment compensation or received compensation from an employer, other than State or private paid leave compensation. If they received State or private paid leave compensation, their Emergency Paid Leave Benefits will be reduced dollar for dollar by the amount of the State or Private paid leave compensation.

The amount of Emergency Paid Leave is 2/3 an individual's average monthly earnings.

Significantly, the Families First Coronavirus Response Act creates new FMLA leave entitlement for “qualifying leave related to a public health emergency.” This is basically a whole new FMLA with unique definitions, coverage and benefits applicable to a "Public Health Emergency. If enacted, the Families First Coronavirus Response Act will:

1. cover employers of one employee or more, or ALL employers, although employers with fewer than 25 employees can deny restoration rights under certain conditions, described below.
2. make employees eligible for leave after only 30 days, as opposed to a year.
3. Expand the definition of Health Care Provider to include a Nurse Practitioner.
4. Expand the definition of Parent to include a stepparent, parent-in-law and parent of a domestic partner.
5. Defines a “QUALIFYING LEAVE RELATED TO A PUBLIC HEALTH EMERGENCY” to mean a public health emergency that has been declared in a location that includes the employee’s work (including the commuting route of the employee), residence, or community, and the employee has  a need for leave:
   1. To comply with a recommendation or order by a health authority that the physical presence of the employee on the job would jeopardize the health of others because of:
      1. the exposure of the employee to coronavirus; or
      2. exhibition of symptoms of coronavirus by the employee; and
      3. the employee cannot perform the functions of the position and comply with such recommendation or order (i.e., the employee cannot perform the job remotely).
   2. To care for a family member with respect to whom a health authority having jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of
      1. the exposure of such family member to coronavirus; or (
      2. exhibition of symptoms of coronavirus by such family member.
   3. To care for the son or daughter of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
6. Defines PUBLIC HEALTH EMERGENCY to mean an emergency with respect to coronavirus declared by a Federal, State, or local authority.
7. Defines FAMILY MEMBER to include sibling, next of kin, grandparent and grandchild in addition to parent, spouse, son or daughter.
8. Does not allow for intermittent leave for Public Health Emergency Leave, unless necessary to care for a son or daughter whose school closes or whose childcare provider is unavailable.
9. The Bill appears to prohibits employers from requiring employees to use accrued vacation, paid time off or sick leave during Public Health Emergency Leave, although employees can still elect to use it. This is a big change from FMLA law applicable to other types of leave.
10. Employees must give notice of foreseeable Health Emergency Leave as is practicable.
11. Employers can require certification of the need for Health Emergency Leave. Certification is sufficient if a health authority or health care provider recommends or orders the leave because the individual has symptoms of coronavirus or should be quarantined, the employee has documentation or evidence of exposure to coronavirus, or a notice of closure or unavailability from a school or childcare provider.
12. The duty to restore employees to work does not apply to employees of employers with fewer than 25 employees who take Health Emergency Leave if:
    1. The employer eliminates the position due to economic conditions caused by a public health crisis during the period of leave;
    2. The employer makes reasonable efforts to restore the employee to an equivalent position;
    3. Those reasonable efforts fail at the time of restoration but the employer makes reasonable efforts during the following year to contact the non-restored employee if an equivalent position becomes available.

Here is a copy of the Families First Coronavirus Response Act as passed by the House on March 14, 2020.

posted by Neil Klingshirn  |  Mar 14, 2020 4:04 PM [EST]  |  applies to Ohio