Bill H.R. 6201 & the COVID-19 Economic Response
Business Update: H.R. 6201“Families First Coronavirus Response Act”
Date: March 19, 2020
Approved by the Senate, and signed into Law by the President, here are some additional updates to H.R. 6201.
DIVISION C—EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
Public Health Emergency Leave - Paid Leave Under FMLA
The Family and Medical Leave Act will be expanded to include any employee who has been employed for at least 30 calendar days by the employer, and includes only companies with 500 or few employees.
The Senate changed the Qualifying Need Related to the Public Health Emergency to include only those employees that are unable to work (or telework) due to a need for leave to care for their son or daughter because of a school closure or because a child care provider is unavailable due to the public health emergency.
The first 10 days for which an employee takes leave may be unpaid, however an employee may use any accrued sick time, vacation time, or medical or sick leave to substitute for those 10 days.
An employer will then be required to pay for each additional day of leave after the initial 10 days.
The calculation for the paid leave will be two-thirds of the employee’s regular rate of pay at the number of hours the employee normally works. However, this cannot exceed $200.00 per day, or $10,000.00 total. This must be for a Qualifying Need, thus the closure of the child’s school or childcare is the only reason allowed under the added FMLA provisions, and the only reason allowed for paid leave under the FMLA.
If the number of hours is uncertain, then it should be the average number of hours per week in the six-months prior. If that information is unavailable, then it should be calculated to the number of hours a person in that position would normally be scheduled to work.
Employees will be required to provide notice of leave as is practicable.
Employers will be required to restore an employee’s position, or something similar should they require leave. However, an employer with fewer than 25 employees may not be required to hold a position open if the position no longer exists due to economic conditions, or other operating conditions that affect the employer due to the public health emergency.
Employers of health care providers or emergency responders may elect to exclude their employers from this section of the Act.
DIVISION E—EMERGENCY PAID SICK LEAVE ACT
Paid Sick Time Requirement
Employers are required to provide paid sick time to their employees that are unable to work (or telework) due to one of the following (slightly changed from the House version of the Bill):
The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
The employee is caring for a son or daughter of such an employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Once again, an employer of an employee who is a health care provider or emergency responder may elect to exclude such an employee from these benefits.
Duration of Paid Sick Time
Full-time employees will be entitled to 80 hours of paid sick time, while part-time employees will be entitled to the average number of hours they work over a two-week period.
The paid sick time for this Act will not carry over to the next year, and will cease once the need for the paid sick time is no longer necessary because of one of the reasons stated above (more or less, once the COVID-19 public health emergency has ceased).
Employees may use the paid sick time immediately, and employers cannot force employees to use other paid time off first.
The notice must be posted in a conspicuous place on the premises of the employer, where notices to employees are customarily posted, or in the employee handbook.
Employers are not able to discharge or discipline employees for taking paid sick time in accordance to this Act.
Violations will be limited to those currently under the Fair Labor Standards Act for failing to pay minimum wage, or unlawful termination.
Both the FLMA and Paid Sick Leave provisions will take effect 15 days after the date of enactment.
Employers will still be required to pay for the leave, and will be reimbursed by the government.
COVID-19: FAQs on Federal Labor and Employment Laws From Ogletree Deakins
Frequently Asked Questions
As of March 18, 2020
What does this Bill mean for my business?
At this time, nothing. While the Bill has been approved by the House of Representatives, it still needs to be approved by the Senate. The Bill can be altered, amended, tossed, and “massaged” by those fine folks we’ve elected to serve our state’s as Senators. The President will then have the opportunity to Veto the Bill if he so chooses. So, until the Bill is passed all the way through, hold tight.
What if I already have a sick leave policy?
That’s great! As long as you provide at least the same amount of sick leave as outlined in the Bill, or equal to 80hours per year, you do not need to provide more general sick leave. However, a portion of the Bill addresses Additional sick leave during a declared public health emergency – employers will have to provide a full-time, salaried employee, 14 continuous days away from work without a reduction in pay, and for a part-time or hourly employee, the number of hours that the employee was scheduled to work, or their regular hours in a 14-day period.
As a business owner, how do I get paid back?
The Secretary of the Treasury will be paying business owners back for the additional sick leave provided to employees during the public health emergency. Business owners will submit an affidavit, and all related records of wages paid to the Secretary of Labor. Once the Secretary of Labor authorizes the proper amount, the Secretary of the Treasury will reimburse business owners. One of the best ways to ensure you are reimbursed is to keep detailed records during this time.
What type of notice do I have to provide my employees?
Employers will be required to provide employees the pertinent information in this Bill, including what sick time is available to them, what steps they must take in order to receive additional sick time, including the documentation they may need to provide from a health care provider, and the steps they can take to file an action if their rights are violated under the Act. The notice must be posted in a conspicuous place on the premises of the employer, where notices to employees are customarily posted, or in the employee handbook.
Business Update: Covid-19
Date: March 18, 2020
Our office has received an influx of calls from our Business Clients regarding Bill H.R. 6201 (“Families First Coronavirus Response Act”), and wanted to give them (and you, since a lot of you are home scrolling away trying to figure out what’s going on in the world) an idea as to what this Bill means. If you’re not interested in my overview below, you can find all of this information by going to congress.gov - H.R. 6201 - Families First Coronavirus Response Act.
First up, remember your civics. If you need a refresher of an adult nature, check out this infographic: How does a Bill Become a Law Infographic, by Visually. If you’re a Gen X-er, you can enjoy this #TuesdayTreat: Schoolhouse Rock - How a Bill Becomes a Law.
So, the Bill was sponsored by Rep. Nita M. Lowey, a democrat from New York and has six (6) co-sponsors (Rep. Scott (D-VA), Rep. Neal (D-MA), Rep. Bishop (D-GA), Rep. DeLauro (D-CT), Rep. Pallone (D-NJ) and Rep Peterson (D-MN). The Bill made it past committee and on March 14th, 2020, passed in the House with a 363-40 vote. That’s a pretty overwhelming vote.
After passing the house, the Bill will then go through the same process on the Senate’s side. This means that there’s a good chance the text of the Bill can be altered, amended, tossed, and “massaged” by those fine folks we’ve elected to serve our state’s as Senators.
After it’s passed both the House (insert check mark) and Senate (?), the President will have a chance to Veto it. While I’m pretty sure his office has alluded to assistance, one can never be sure exactly what a politician is going to do.
From a civic’s side, this Bill has two (2) significant hurdles to surpass to become a law.
The Proposed Legislation
Below is the most basic summary of H.R. 6201. The government is “making emergency supplemental appropriations for the fiscal year ending September 30, 2020, and for other purposes”. It’s got eight (8) different divisions, which all address different subject matters. They are as follows:
A. Second Coronavirus Preparedness and Response Supplemental Appropriations Act.
B. Nutrition Waivers.
C. Covid-19 Health Care Worker Protection Act.
D. Emergency Paid Leave Act of 2020.
E. Emergency Unemployment Insurance Stabilization and Access Act of 2020.
F. Paid Sick Days for Public Health Emergencies and Personal and Family Care.
G. Health Provisions.
H. Budgetary Effects.
Despite having read the Bill in its entirety, I’m not going to get into the majority of it, because it’s just TOO bulky to summarize. I do want to address the two sections of the bill which could have the most effect on local businesses.
Division D – Emergency Paid Leave Act of 2020
Individuals may be eligible for certain emergency paid leave benefits. These benefits look to cover individuals for up to 90 days (there are 3, 30-day periods). You will have to fill out an application to receive any funds.
Benefit Amount is 2/3 of your average monthly earnings, not to exceed $4,000.00 (this amount will be reduced on a dollar-to-dollar basis if you’re receiving State or private paid leave during the eligible period).
Applications will be available over the internet, telephone or by mail. The individual must attest they are an eligible individual, at least 14 emergency leave days with respect to the individual occurred, or are expected to occur, and that the individual has informed his/her employer.
Emergency Leave Day, where an individual is not able to engage in employment because of one of the following reasons:
(1) The individual has a current diagnosis of COVID-19
(2) The individual is under quarantine (including self-quarantine) at the instruction of a healthcare provider, employer, or a local, State or Federal official in order to prevent the spread of COVID-19
(3)The individual is engaged in caregiving for an individual who has a current diagnosis of COVID-19 or under quarantine as described in (2)
(4) The individual is engaged in caregiving because of COVID-19 related closing of a school or other care facility or care program for a child or individual unable to provide self-care.
Limitations to this, where no calendar day may be treated as an emergency leave day, include:
(1) Where the individual received any form of compensation from employer including wages or any form of accrued paid leave for such a day; and
(2) The individual was eligible for unemployment compensation for the week in which such a day occurs.
Eligible individuals will include any person who had wages or self-employment income during the 30-day period ending on the first emergency leave day with respect to such individual. (Self-Employment is defined in section 1402(b) of the Internal Revenue Code of 1986).
Protection of Existing Benefit Rights. Employer must comply with any contract, collective bargaining agreement, or any employment benefit program or plan that provides greater paid leave or other leave right to employees than the rights established under this title.
Individuals will not be required to claim any amount received under this bill on their gross income for the purposes of the Internal Revenue Code of 1986.
FMLA. The Family and Medical Leave Act will be adjusted to include the two-year period starting at the date of enactment of the Emergency Paid Leave Act of 2020. (Thus, an eligible employee shall be entitled to a total of 12 work weeks of leave during that two-year period).
An employee will only be required to have been employed for 30-days in order to receive benefits under the FMLA for the reasons stated in this Act. Additionally, the threshold for this section will be 1 employee instead of 50 employees as currently required under the FMLA.
There are some other additions, which include expansion of the definition of parent, notice, documentation required by the requesting employee, and restoration to their position if changed under the circumstances.
Division F – Paid Sick Days for Public Health Emergencies and Personal and Family Care
Earning of Paid Sick Time. An employer shall provide each employee employed by the employer not less than 1 hour of earned paid sick time for every 30 hours worked, but shall not be required to provide more than 56 hours of paid sick time in a year, unless the employer chooses to set a higher limit. Exempt Employees under the Fair Labor Standard Act will presume to have a 40-hour work-week. If an employee has a shorter than 40-hour work week, the sick time shall be based on their normal work-week.
Generally, an employee will be able to use sick time after 60 days of employment, however, in a Public Health Emergency, the employee may immediately use the additional or accrued paid sick time regardless of how long the employee has been employed by an employer.
Employers with existing policies who have current policies sufficient to meet these requirements, shall not be required to permit an employee to earn more paid sick time under this Section.
Paid sick time may be used by an employee for a myriad of reasons, including absence resulting from physical or mental illness, injury or medical condition of the employee, preventative medical care for the employee, an absence due to the employee’s exposure to a communicable disease, or absence for caring for a parent or a child.
Additional Paid Sick Time. Once your State or local government has declared a public health emergency, you will be required to provide additional paid sick time. A full-time, salaried employee, you will need to provide them 14 continuous days away from work without a reduction in pay, and for a part-time or hourly employee, the number of hours that the employee was scheduled to work, or their regular hours in a 14-day period.
The sick time will need to be available for immediate use, and the same reasons for use apply to the additional sick time, as the normal paid sick time including absence resulting from physical or mental illness, injury or medical condition of the employee, preventative medical care for the employee, an absence due to the employee’s exposure to a communicable disease, or absence for caring for a parent or a child.
The employee may use the additional sick time before they use any accrued sick time, and the employer may not require an employee to use the accrued sick time, or any other paid leave provided by the employer to the employee, before using the additional sick time.
Reimbursement. A qualified employer will be reimbursed by the Secretary of the Treasury for the wages paid to the employee for the period of additional paid sick time.
Employers will have to submit an affidavit to the Secretary of Labor that attests that the employer-provided such additional paid sick time, with the records showing the wages associated with the additional sick time. Upon approval from the Secretary of Labor, the Secretary of the Treasury will provide timely reimbursement.
Employees should make their best efforts to provide information 7 days in advance, or as soon as practicable, about the expected time of duration they will need paid sick time.
For a period exceeding three sick days, an employer may require a request for certification of paid sick leave from a health care provider of the eligible employee. However, no certification will be required during a public health emergency.
Notice. Employers are required to notify each employee and include in any employee handbook the information, and pertinent provisions of this Act including:
(1) information describing paid sick time available to employees under this Act;
(2) information pertaining to the filing of an action under this Act;
(3) the details of the notice requirement for a foreseeable period of time;
(4) information describing the protections that an employee has exercising rights under this act, and how the employee can contact the Secretary of Labor if these rights are violated.
The notice must be posted in a conspicuous place on the premises of the employer, where notices to employees are customarily posted, or in the employee handbook.
Violation of the notice requirement may lead to a civil penalty of $100 for each offense.
Penalties for Violation of this Act. Employees may recover damages equal to the amount of wages, salary, employment benefits or other compensation denied or lost by reason of the violation by employers. This also includes all reasonable attorney’s fees.
The Primary take away is we currently do not have any idea how COVID-19 will impact our businesses in South Carolina, or what the final details of an economic recovery plan will entail. It is important for us, at Epstein Law, to be a resource to our business clients – and their employees -keeping you apprised of the developments of this Bill as COVID-19 makes her mark in American legal history. As always, feel free to reach out to us with questions and concerns, and check back with us as we update the information on this page.