Groundbreaking Paid Sick Leave Bill Adopted by the U.S. House of Representatives (HR 6201): Will It Become Law?

Updated on 3/17/2020

As we constantly monitor Washington for information relevant to healthcare employers, we have learned that “fluid” is an understatement. In the few hours that it takes to read, digest and summarize acts of Congress for you, the bills have been revised, sometimes dramatically. Accordingly, until the president has signed the FMLA Expansion and/or Emergency Paid Sick Leave bills, we recommend that employers continue to comply with the current federal and state FMLA and ADA and your established policy, with one caveat: keep a log of all requests and actions related to COVID-19 time off. We expect that sometime this week, some version of one or both of these bills will be passed by the House and the Senate and signed by President Trump. At that time, you may need to reconsider requests for leave that were previously denied, absences that are being recorded as unexcused may then become excused, and time off that hasn’t been paid may thereafter become paid time off.

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As communities react to the coronavirus outbreak, with school closures, sporting events canceled or postponed, and visitor attractions closing, employers continue contemplating what do to when employees or their family members have either been exposed to or contracted the coronavirus. Additional concerns arise with employees facing lack of child care coverage. Over the weekend the U.S. House of Representatives passed the Emergency Families First Coronavirus Response Act (H.R. 6201) found here, weighing in on this issue. This summary relies on the version of the bill which passed in the early morning hours of March 14, 2020.

The bill includes many public health measures, such as establishing free testing, aid for food banks and senior nutrition programs. However, two significant portions of the bill, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, provide rights and protections to employees who need paid leave for matters related to the Coronavirus. These include rights to leave from work and pay for instances where an employee misses work for self-isolation, to care for impacted family members or due to school closures and loss of child care.

It is critical to note that this bill has NOT been signed into law. The bill now moves to the U.S. Senate for a vote, which is anticipated to happen soon. The bill had significant bipartisan support in the House but has been criticized by some as having not gone far enough and by others for having gone too far. We will see if the Senate approves the bill as drafted, modifies it or rejects it outright.

We will closely monitor developments with this bill, but the following is a brief summary of some of the key provisions specific to employee paid leave rights that will directly impact covered employers.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act would provide employees with paid leave and job protection for certain covered reasons after a 14-day unpaid leave period.[1] It amends the Family and Medical Leave Act (“FMLA”) by adding on these additional employee rights and protections. Importantly, as discussed below, there are other key distinctions between the traditional FMLA definitions and those within this bill. This bill, for example, has a much broader definition of “family members” than employers are accustomed to under the traditional provisions in the FMLA.

Here are some key provisions of the bill that would be in place if passed in its current form:

Who Is Covered?

Employees of employers with fewer than 500 employees;
To be covered, an employee must be employed by the employer for 30 days;
There is no minimum worked hour requirement for employees (i.e., no 1250-hour requirement);
The bill suggests that the Secretary of Labor could decide to exclude employers with fewer than 50 employees and/or to exclude certain health care providers and emergency responders altogether. Such exclusions, if made, would be in the form of Department of Labor Regulations issued following the bill’s enactment.

What Is Provided?

12 weeks of job-protected leave under the FMLA for reasons related to the Coronavirus as described below. (Note: For employers with fewer than 25 employees, the job restoration obligations may not apply if certain conditions are met.)
The first 14 days of the 12 weeks can be unpaid, although an employee may choose to substitute accrued vacation leave, personal leave or other medical or sick leave. An employer cannot require an employee to substitute such leave.
Pay for the remaining 10 weeks is based on an amount not less than two-thirds of the employee’s regular rate of pay AND the number of hours the employee would otherwise be normally scheduled to work (a separate rule applies for employees with a varying schedule).

For What Reasons Can the Employee Use Leave?

To comply with a recommendation or order by a public official or health care provider to remain off of work because the employee (i) has been exposed to the coronavirus or is exhibiting symptoms of the coronavirus, AND (ii) the employee is unable to perform the functions of the job and comply with the recommendations/order;
To care for a family member for whom a determination has been made by a public official or health care provider to avoid the community due to the family member’s exposure to the coronavirus or exhibition of symptom of the coronavirus; or,
To care for their child under 18 years of age because of a school or place of care has been closed, or the child care provider of the child is unavailable, due to a public health emergency.

What Is a Family Member?

Unlike the traditional FMLA, the definition of “family member” is broad and includes the:

Employee’s parent;
Employee’s spouse;
Employee’s child under 18; or,
An individual who is a pregnant woman, senior citizen, individual with a disability, or has access or functional needs who is either:
- A son or daughter of the employee;
- A next of kin of the employee;
- A grandparent of the employer; or
- A grandchild of the employee.

This bill, if passed, would become effective no later than 15 days after the date of its enactment, and the right to leave under the bill would end on December 31, 2020.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act provides employees with limited paid leave if they have to miss work for covered reasons. Here are some key provisions of this portion of the bill that would be in place if enacted:

Who Is Covered?

Covers private employers with fewer than 500 employees (Note: There is no carve-out for employers with fewer than 50 employees).
Covers any public agency or any other entity that is not a private entity or individual, employing one or more employees.
There is no minimum number of days an employee must be employed to be covered.

What Is Provided?

Full-time employees receive 80 hours of paid time.
Part-time employees receive paid time equal to the number of hours that the employee works, on average, over a two-week period.
If the leave is due to the employee’s own care, diagnosis or isolation, the employee shall receive pay not less than the greater of his/her regular rate of pay, or the applicable minimum wage rate.
If the leave is to care for a family member or child whose school has closed or child care provider is unavailable, the pay is at two-thirds.

For What Reasons Can the Employee Use Leave?

To self-isolate because the employee is diagnosed with the coronavirus;
To obtain a medical diagnosis or care if the employee is experiencing symptoms of the coronavirus;
To comply with a recommendation or order by a public official or health care provider to remain off of work because the employee has been exposed to the coronavirus or is exhibiting symptoms of the coronavirus;
To care for or assist a family member who is self-isolating due to a diagnosis with the coronavirus or who is exhibiting symptoms of the coronavirus
To care for or assist a family member about whom a determination has been made by a public official or health care provider to avoid the community due to the family member’s exposure to the coronavirus or exhibition of symptoms of the coronavirus; or,
To care for their child if the school or place of care has been closed or the child care provider of such child is unavailable due to the coronavirus.

What Is a Family Member?

Again, unlike the traditional FMLA, the definition of “family member” is broad and includes the:

Employee’s parent;
Employee’s spouse;
Employee’s child; or,
An individual who is a pregnant woman, senior citizen, individual with a disability, or has access or functional needs who is either:
- A sibling of the employee;
- A next of kin of the employee;
- A grandparent of the employee; or
- A grandchild of the employee.

This bill, if passed, would become effective no later than 15 days after the date of its enactment and would expire on December 31, 2020.

Employer Tax Credits for Paid Family and Medical Leave and Emergency Paid Sick Leave

The new law provides social security payroll tax credits to covered private employers paying the newly-required sick leave wages. The credit will be 100 percent up to $511 per day per employee using paid sick leave under the Emergency Paid Sick Leave Act for the specific purposes of self-isolation, obtaining a diagnosis or complying with self-isolation recommendations with respect to coronavirus. By contrast, the tax credit is limited to $200 per employee per day (and a maximum of $10,000 per employee) for those who are paid for time off under the provisions of the Emergency Family and Medical Leave Expansion Act (for self-care, care for a family member and care for a child whose school is closed).

It’s Not Law Yet

As mentioned earlier, this bill is pending and has not been passed by the Senate. However, it may provide a roadmap of what is to come with respect to employee paid leave rights related to the coronavirus outbreak.

We will continue to monitor and provide you information as it becomes available. In the meantime, if you have any questions or require any assistance, please don’t hesitate to contact: