March 19, 2019 (WASHINGTON INSIDER ALERT) - On March 18, President Trump signed into law H.R. 6201, the Families First Coronavirus Response Act. This piece of legislation is intended to help workers, businesses and the healthcare sector in their response to and the consequences of the coronavirus (COVID-19) outbreak.
The law provides free coronavirus testing, expands food assistance and unemployment benefits, and requires employers to provide additional protections for healthcare workers. The law also creates two forms of paid leave for workers impacted by the outbreak:
The first paid leave provision requires private-sector employers with fewer than 500 employees and all public sector employers to provide employees who have been on the payroll for 30 calendar days up to 12 weeks of job-protected leave as established under the Family and Medical Leave Act (FMLA) for “a qualifying need related to a public health emergency.” The law defines “qualifying need” as instances where the employee is unable to work or telework due to the need to care for a minor if the child’s school or childcare has been closed or is unavailable due to a public health emergency.
The first 10 days of the leave would be unpaid, but the employee would have the option to substitute accrued vacation, personal or sick leave. Employers would not be able to require employees to make such a substitute. The remainder of the leave would be paid; workers would receive generally two-thirds of their regular rate of pay for the hours they would be scheduled to work if the public health emergency was not occurring. However, the per employee paid leave under this provision is capped at $200 per day, or $10,000 total.
As is established by typical FMLA leave, H.R. 6201 ensures workers’ positions are job-protected until they return to work. There is an exception to this provision for employers with less than 25 employees if, when the worker returns, the position no longer exists due to operational changes made in response to the public health emergency.
The second paid leave provision within H.R. 6201 requires private employers with less than 500 employees and all public employers to provide up to 80 hours (pro-rated for part-time workers) of paid sick time for employees who are unable to work or telework, because:
The leave would be immediately available for all workers. Employers would be required to pay each employee up to $511 per day, or $5,110 total, when leave is taken for the first three reasons identified above. For the latter three reasons, employers would be liable for up to $200 per day, or $2,000 total.
This provision prohibits retaliation against workers that choose to take leave provided by the law and treats failure to pay workers for such leave the same as violations of minimum wage provisions under the Fair Labor Standards Act.
H.R. 6201 provides the Secretary of Labor with the authority to exempt small businesses (those with fewer than 50 employees) from both paid leave provisions of the law if implementing them would jeopardize the viability of the business. Both leave provisions take effect 15 days after the legislation’s enactment and will be in place through the end of 2020. While employers are expected to cover the costs of the newly created leave upfront, H.R. 6201 provides employers in the private sector with refundable tax credits. These credits are not available to public sector employers.
CUPA-HR has already engaged the Department of Labor with respect to issuing regulations and guidance on integrating this leave with existing policies and requirements. We are also joining other higher education association efforts to seek additional relief for public employers.
Congress is already feverishly working on the next stage of relief. As their deliberations continue, we may see more paid leave provisions as well as additional relief for employers. We will continue to track new legislation and keep you posted about the latest details.