On March 18, 2020, the Senate approved House of Representatives Bill 6201, the Families First Coronavirus Response Act (“the Act”). The Act provides for additional paid leave, extends job-protected leave, establishes free COVID-19 testing, protects public health workers, and provides benefits to children and families affected by COVID-19. The bill has now gone to President Donald Trump and is expected to be signed into law. The Act will go into effect 15 days after it is signed by the President.
As a practical matter, the Act has serious financial and legal implications for most California employers. It expands the application of the Family Medical Leave Act (“FMLA”) to all companies with less than 500 employees. It also increases the number of sick days that employers must provide and increases paid sick leave benefits. A summary of the key portions of the Act is below.
Additional Paid Sick Days
The Act provides:
- Public agencies and employers with fewer than 500 employees must provide full-time employees with eighty (80) hours of paid sick leave for COVID-19-related issues, including the following events:
- The worker is diagnosed with COVID-19.
- The worker is quarantined (including self-imposed quarantine) at the instruction of a health care provider, employer, or government official.
- The worker is caring for another person who has been diagnosed with COVID-19 or is under quarantine.
- The worker is caring for a child or other individual who is unable to care for themselves due to the closure of a school, childcare facility or other care program as a result of COVID-19.
- Part-time employees are entitled to the number of hours of paid sick time equal to the number of hours they work, on average, over a two-week period.
- Employers must compensate employees for any paid sick time they take at their regular rates of pay (as determined by the Fair Labor Standards Act), but not to exceed $511 per day ($5,110 total) for employees for their own use, and $200 per day ($2,000 total) to care for others.
- Employers are required to post a notice informing employees of their expanded sick leave rights.
- Sick leave under the Act is in addition to that already provided by employers.
- Employers with PTO policies are not permitted to change their policies to avoid providing the 14 additional days after the enactment of the Act.
- The paid sick leave provisions will go into effect 15 days after enactment and will expire on December 31, 2020.
- Construction workers are entitled to receive sick pay based on hours worked for multiple contractors.
- Small businesses (under 50 employees) can seek reimbursement for the costs of providing the 14 days of additional paid sick leave used by employees during a public health emergency.
- Tax credits are allowed for employers who provide sick leave.
Expansion of FMLA
The Act expands FMLA’s application as follows:
- The Act provides 12 weeks of job-protected paid FMLA leave for employees of public agencies and employers with fewer than 500 employees. FMLA also now applies to employers with under 50 employees who were previously exempt.
- The first ten days of this expanded FMLA leave may be unpaid.
- Employees are permitted to use accrued personal or sick leave during the first 14 days, but employers are prohibited from requiring employees to do so.
- The leave applies to any employee who has been working for their employer for at least 30 days.
- Employees may use the leave to quarantine, because of school closures, or to care for a family member.
- The provisions also expand the category of people for whom leave can be taken (i.e., domestic partner, child of domestic partner, grandparent, next of kin, etc.)
- After the first ten days, employers must compensate employees at a rate of two-thirds of the employee’s regular rate of pay, but not to exceed $200 per day or an aggregate of $10,000 per employee, while the employee is on COVID-19-related FMLA leave.
- The FMLA provisions will go into effect 15 days after enactment and expire on December 31, 2020.
- Employers with fewer than 50 employees can apply for a hardship waiver “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” Congress has not specified how this will be processed, analyzed and applied.
Free COVID-19 Testing for Individuals
The Act requires private health plans, Medicare, Medicaid, CHIP, TRICARE, Coverage for Veterans and Coverage for Federal Civilians to provide coverage at no cost sharing for COVID-19 testing. The ACT also provides for reimbursement by the National Disaster Medical System to reimburse testing costs for uninsured individuals. American Indians and Alaskan Natives are also entitled to testing without cost sharing including when sent for care away from the tribal health care facility.
Protection of Public Health Workers
The Act requires the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) within 30 days, and a permanent standard six months thereafter, requiring employers in the health care or other “elevated risk” sectors to develop and implement a comprehensive infectious disease exposure control plan to protect health care workers from exposure to COVID-19.
Benefits for Children and Families
The Act released federal funding for those impacted by COVID-19, including the following:
- $500 million to The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) to provide food to low-income pregnant women or mothers who lose their jobs.
- $400 million to The Emergency Food Assistance Program (TEFAP) to assist local food banks.
- $100 million for the USDA to provide nutrition assistance to U.S. Territories.
- $5 million for the Department of Labor (DOL) to a administer the emergency paid sick days program.
- $250 million for the Senior Nutrition program to deliver meals to low-income seniors.
- Allows the Department of Agriculture to approve state plans to provide emergency Supplemental Nutrition Assistance Program (SNAP) assistance to households with children who would receive free or reduced-price meals if their schools were not closed.
- The act also provides for $1 billion in 2020 for emergency grants to states for activities related to unemployment insurance benefits, under conditions discussed further in The Act.