Labor & Employment Law Daily Dems float an expansive version of the next COVID-19 relief package
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Friday, May 15, 2020

Dems float an expansive version of the next COVID-19 relief package

By Pamela Wolf, J.D.

The massive bill includes provisions that would further expand the emergency paid leave and expanded family and medical leave protections guaranteed in the FFCRA.

Democrats on May 12 introduced the Heroes Act in the House—their version of “phase four” COVID-19 relief in the continuing process of providing necessary resources and support to respond to the ongoing coronavirus crisis. The massive 1,815-page bill would provide extensive relief that goes beyond what many would consider COVID-19 target measures. Republicans have called it a “partisan wish list” that will be dead on arrival in the Senate.

Health and insurance provisions. Among the key health provisions in H.R. 6800 are the establishment of a national testing, contact tracing, and surveillance strategy, provisions to ensure that all Americans can seek treatment for COVID-19 without concern for cost, support for front line health care providers, expansion of affordable health coverage, enhanced vaccine manufacturing and distribution capacity, investments in public health infrastructure, and new protections to keep nursing home patients safe.

The legislation would support hospitals and frontline health care providers by infusing an additional $100 billion into the Health Care Provider Relief Fund, along with requirements on allocation of the funding to ensure that funds are distributed to providers in an equitable and efficient way. The bill would also improve the Accelerated and Advance Payment Program that has been critical to keeping providers afloat for the past few months.

H.R. 6800 would in addition provide stable and affordable health coverage for millions of Americans by fully subsidizing the cost of COBRA and furloughed workers’ premiums to allow workers to maintain their employer-sponsored coverage if they lose employment, have their hours reduced, or are furloughed as a result of the COVID-19 pandemic.

Expanding on the FFCRA. Among other things, the Heroes Act would also make changes related to the emergency paid sick and family and medical leave provided in the Families First Coronavirus Response Act (FFCRA), including extending protections from the end of 2020 to the end of 2021, according to a bill summary.

Expanded FMLA leave. The bill would temporarily suspend, until December 31, 2022, the current 1,250 hour eligibility requirement and reduce the tenure eligibility requirement from 12 months to 90 days under non-emergency Family and Medical Leave Act (FMLA) to ensure rampant unemployment and furloughs do not leave workers unable to qualify for FMLA benefits in the near future. The legislation would also clarify that public agencies are covered under the FMLA, regardless of the number of employees.

The Heroes Act would also expand emergency leave definitions to give private and public sector employees who have been on the job for at least 30 calendar days the right take up to 12 weeks of job-protected paid leave under the Family and Medical Leave Act, no matterthe size of their employers.

Types of leave. Employees would be able to take this leave to:

  • Self-isolate because they were diagnosed with COVID-19;
  • Obtain a medical diagnosis or to care for symptoms of COVID-19;
  • Comply with a recommendation or order to self-isolate because physical presence at work would jeopardize the health of the employee, other employees, or a person in the employee’s household.

These types of leave are not currently covered under the FFCRA’s expanded family and medical leave provisions.

How leave is counted. Workers would be provided a full 12 weeks of paid emergency FMLA leave that would not count as an employee’s 12 weeks of non-emergency unpaid FMLA leave. Employees would also be able to take emergency FMLA leave concurrently with any other paid leave they have available.

Among other things, H.R. 6800 would clarify that employees can take leave intermittently or on a reduced work schedule, regardless of a previous agreement between an employer and employee.

Emergency paid sick time. As to the FFCRA Act’s paid sick time provisions, H.R. 6800 would permit eligible employees to use paid sick leave for the uses allowed under the emergency FMLA as expanded above. For each 12-month period, eligible full-time employees would be entitled to 80 hours of emergency paid sick leave. For each 12-month period, eligible part-time employees would be entitled to the hours of emergency paid sick leave that equaled the typical number of hours that they work in a typical two-week period.

The legislation would also:

  • Ensure that employees receive emergency paid sick leave in addition to any existing employer-provided paid leave;
  • Clarify that employees can take leave intermittently or on a reduced work schedule, regardless of a previous agreement between an employer and employee;
  • Allow employers to require requests for paid sick leave to be supported by basic documentation, but not before seven days after the employee has returned to work;
  • Require that employees provide their employers with notice of the need to take leave as soon as is practicable;
  • Clarify that full emergency paid sick leave is available to employees where they begin employment with a new employer;
  • Require employers to restore employees to their positions after returning from paid sick leave; and
  • Eliminate the large employer exemption, and clarify that nonprofit organizations are covered employers to ensure that all full-time and part-time employees earn full wage replacement (up to $511 per day) for all emergency paid sick leave uses.

The Heroes Act would make corresponding changes to employer payroll tax credits.

At the Department of Labor. The Heroes Act would provide the Department of Labor with $3.1 billion to support workforce training and worker protection activities related to coronavirus, including:

  • $2 billion to support worker training;
  • $25 million for migrant and seasonal farmworkers, including emergency supportive services;
  • $925 million to assist states in processing unemployment insurance claims;
  • $15 million for the federal administration of unemployment insurance activities;
  • $100 million to OSHA for workplace protection and enforcement activities in response to coronavirus, including $25 million for Susan Harwood training grants that protect and educate workers;
  • $6.5 million for the Wage and Hour Division to support enforcement and outreach activities for paid leave benefits; and
  • $5 million for the Office of the Inspector General.

Tax credits to help workers. The measure would provide a multitude of tax credits, including these for workers:

  • Double the above-the-line deduction for certain unreimbursed out-of-pocket expenses for elementary and secondary school teachers from $250 to $500 (the amount is adjusted for inflation).
  • A $500 above-the-line deduction for unreimbursed expenses of professional first responders related to the cost of uniforms or tuition and fees related to training (the amount is indexed to inflation).
  • A $500 above-the-line deduction for 2020 for the uniforms, supplies, and equipment of first responders and COVID-19 front-line employees, defined as those who perform at least 1,000 hours of essential work, as defined for pandemic premium pay reimbursable from the COVID-19 Heroes Fund.

The bill would also provide a 30 percent refundable payroll tax credit for expenses reimbursed or paid for the benefit of an employee for reasonable and necessary personal, family, living, or funeral expenses incurred as a result of the presidentially declared disaster related to COVID-19. The credit percentage would increase to 50 percent for expenses paid to employees if a substantial portion of the services performed by the employee is essential work, as defined for pandemic premium pay reimbursable from the COVID-19 Heroes Fund. No credit would be permitted if the expenses are provided in a manner which discriminates in favor of highly compensated employees.

Union support. Service Employees International Union (SEIU) International President Mary Kay Henry quickly signaled the union’s support for the Heroes Act relief package, saying: “Working people have been calling on their elected officials to take bold action that ensures health, safety and economic security for everyone. Failure to act immediately and inclusively will cost more lives and risk even deeper economic hardship for us all.”

As Henry sees it, President Trump has refused to marshal the federal government’s power to ensure enough personal protective equipment or to advocate for working people. “Our families need him to stop putting corporations and his reelection campaign before their well-being,” she said. “We need decisive action that ensures working people come first.”

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