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House Bill Expands FMLA Leave and Paid Sick Leave Due to COVID-19

March 16, 2020

On March 14, 2020, the U.S. House of Representatives voted to approve House Bill No. 6201, the Families First Coronavirus Response Act (“FFCRA”) in response to the COVID-19 pandemic.  The bill addresses two areas of relief for the U.S. workforce that will affect the vast majority of employers.  First, it expands the scope of FMLA leave to provide for care of a family member with COVID-19.  Second, it provides for 80 hours of paid sick leave for employees to recover from and/or prevent the spread of coronavirus. Keep in mind that the House Bill is not yet law and there may be changes once the U.S. Senate weighs in later today. 

Both provisions take effect no later than 15 days after the date of enactment of the FFCRA, and apply to any employer with “fewer than 500 employees” — which is a stark change from the FMLA’s requirement that a covered employer have 50 or more employees.

  1. Emergency Family and Medical Leave Expansion Act

The bill allows covered employees to take 12 weeks of FMLA leave through December 31, 2020 to (i) provide care for a family member who was exposed to or exhibits symptoms of coronavirus, or (ii) care for a minor son or daughter if the child’s school or place of care has been closed, or the child care provider is unavailable due to coronavirus.  In addition to adding coronavirus-related leave as a qualifying health condition, the bill significantly expands the scope of the FMLA in terms of who is covered.  Here is what you need to know:

  • A covered employee includes anyone employed by the employer for 30 days or more.
  • The first 14 days of any coronavirus-related family leave may be unpaid, but subsequent time must be paid in an amount that is not less than two-thirds of an employee’s regular rate of pay.
  • Employees can elect to substitute any accrued paid vacation, parental, medical or sick leave for unpaid leave, but employers cannot require employees to substitute paid leave for unpaid leave.
  • The leave is job-protected, meaning an employer must return the employee to the same or equivalent position upon return, with limited exceptions.
  1. Emergency Paid Sick Leave Act

The bill also provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees), for coronavirus-related illness and self-quarantine in the following circumstances:

  • To “self-isolate” because the employee was exposed to or diagnosed with coronavirus, or exhibits symptoms of coronavirus;
  • To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus;
  • To care for or assist a family member of the employee who is self-isolating due to diagnosis with coronavirus or symptoms of coronavirus; or
  • To care for the child of such employee if the school or place of care has been closed, or the childcare provider of such child is unavailable because of coronavirus.

Paid sick leave is to be compensated at the employee’s regular rate of pay, except that, for leave taken to care for a sick family member or child in the case of school closing, the employee may be compensated at two-thirds of the employee’s regular rate of pay. To help offset the cost of the emergency paid leave, the bill makes available a tax credit equal to 100 percent of emergency sick leave wages paid by an employer.

It is also important to note that paid sick time under the bill is available for immediate use, regardless of how long an employee has been employed.  If an employer already offers paid sick leave to its employees, coronavirus paid sick leave must be in addition to the already-existing leave, and an employer cannot amend its sick leave policy to avoid offering additional leave.  Finally, employers may not discriminate or retaliate against employees who take paid sick leave.  Violations of these provisions may result in penalties for failure to pay minimum wages consistent with the Fair Labor Standards Act.

For employers in Connecticut facing difficult questions about whether to shut down or institute mandatory work-from-home policies in the wake of the COVID-19 outbreak, the Connecticut Department of Labor issued emergency guidance late Friday, March 13, 2020 in the form of an FAQ.  The guidance can be found at https://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF.  Employers should read this guidance in conjunction with the potential new federal law that requires paid emergency FMLA and sick leave. 

Shipman & Goodwin continues to monitor changes to state and federal law in the wake of this dynamic and unprecedented public health crisis, and will provide additional guidance as more information becomes available.

The full text of the House Bill can be found at the following link: https://docs.house.gov/billsthisweek/20200309/BILLS-116hr6201-SUS.pdf

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