The bipartisan effort to provide much-needed relief for both employers and employees alike to deal with the COVID-19 crisis has been signed by President Trump. Note that the FMLA amendments only provide for public emergency leave to care for a child when the child’s school or place of care has been closed.
Marking the end of a bipartisan effort in Congress, on March 18, the Senate considered and approved the House-passed version of the “Families First Coronavirus Response Act,” H.R. 6201. The bill was passed in the House on March 14 by a vote of 363-40, but saw another vote on March 16, via H. Res. 904, to make “technical amendments” that included some substantive changes, which appear to have been part of the compromises made to permit the massive COVID-19 legislation to move quickly through both Chambers of Congress and reach President Trump’s desk as soon as possible.
On March 17, it was questionable how quickly H.R. 6201 would get to the Senate floor for a vote. But on March 18, the Senate held four roll call votes, first voting separately to defeat three proposed amendments to the bill, and then passing the legislation as received in the Senate on March 17.
Comprehensive legislation. The comprehensive measure includes provisions that expand the FMLA to include public emergency family and medical leave, provide emergency unemployment insurance, emergency paid sick leave, and tax credits to employers for paid sick and paid family and medical leave, among other relief.
FMLA amendments. Perhaps most notable are the FMLA amendments for public emergency leave, under which employers with 500 or fewer employee would be required to provide employees with up to 12 weeks of job-protected leave under the FMLA to be used to:
- Care for a child of an employee if the employee is unable to work or telework due to a need for leave to care for a child if the school or place of care has been closed, or the child-care provider is unavailable, due to a coronavirus public health emergency.
Technical corrections to the bill in the House removed the requirement that leave be provided to adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus or to care for an at-risk family member who is adhering to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus.
The first 10 days of initial leave could be unpaid, although an employee could elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. Employers would be required to provide paid leave of at least two-thirds the employee’s regular rate for each day of leave taken after the initial 10-days for which leave may be unpaid.
Obligation capped. The employer’s obligation where the leave is to care for children is capped at $200 per day and $10,000 in the aggregate.
Paid emergency sick time. Employers would be required to provide employees with emergency paid sick time of 80 hours for full-time employees and, for part-time employees, the average number of hours worked over a two-week period, to quarantine or seek a diagnosis or preventive care for coronavirus. These requirements would also apply to employers with fewer than 500 employees, as well as government employers.
Reduced pay rate. The rate of pay for leave would be reduced to two-thirds of the employee’s regular rate when the leave is for the purpose of:
- Caring for a family member to quarantine, seek a diagnosis, or preventive care for coronavirus; or
- Caring for a child whose school has closed, or whose childcare provider is unavailable, due to the coronavirus.
Payment caps. The paid sick time is capped at $511 per day and $5,110 in the aggregate for employees taking leave because they are subject to a quarantine or isolation order, advised by a healthcare provider to self-quarantine due to COVID-19 concerns, or experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The cap is set at $200 per day and $2,000 in the aggregate for an employee who is:
- Caring for an individual who is subject to an order to quarantine or isolate, or advised by a healthcare provider to self-quarantine;
- Caring for the child of a quarantined, isolated, or self-quarantined person when the child’s school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions;
- 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.
Defeated amendments. The following amendments were defeated in the Senate on March 18 for lack of the three-fifths majority—60 votes—required for passage:
- Amendment 1556 (Senator Rand Paul (R-Ky)): To amend the Internal Revenue Code to require a social security number for purposes of the child tax credit, to provide the President the authority to transfer funds as necessary, and to terminate U.S. military operations and reconstruction activities in Afghanistan (failed 3-95).
- Amendment 1559 (Senator Patty Murray (D-Wash): To provide Americans with 14 days paid sick time and 12 weeks of leave at two-thirds of wages during a public health emergency (failed 47-51).
- Amendment 1558 (Senator Ron Johnson (R-Wis): To strike federally mandated sick pay and paid family leave, and replace it with financial support provided through State-administered unemployment insurance systems and funds (failed 50-48).
The final vote. The Senate completed its vote on H.R. 6201 shortly after 4:00 p.m., approving it by a 90-8 margin, and the bill was signed by the President later in the evening.
Stay tuned, because Senator McConnell has vowed that there is more to come in response to COVID-19.
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