CLIENT ALERT UPDATE: Revisions to Families First Act Relax Mandatory Paid Leave

Our previous update on the Families First Coronavirus Response Act (the “Act”) reported on the requirements of the bill passed by the House earlier this week. Since then, the Act was revised slightly in several important respects that relax the burden on employers, particularly health care providers. See below for the most up-to-date rules applicable to COVID-19 related leave.

Changes are happening quickly, and we expect additional regulations and guidance soon. Be on the lookout for further updates as we continue to monitor the situation.

Emergency Paid Sick Leave

• Health care provider employers may elect to exclude their employees from the paid sick leave requirement.
• All other employees are entitled to two weeks of paid sick leave if they cannot work (or telework) for qualified reasons, but the list of qualified reasons has changed slightly. Employees now can qualify for emergency paid sick leave for any one of the following reasons:
  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee’s health care provider has advised the employee to self-quarantine for reasons related to COVID-19;
  3. The employee has COVID-19 symptoms and seeks medical diagnosis;
  4. The employee must care for an individual whose situation falls under reasons (1) or (2);
  5. The employee must care for a son or daughter whose school or childcare has been closed or is unavailable due to COVID-19; or
  6. The employee is experiencing any other substantially similar condition specified by the Department of Health and Human Services and the Department of Labor.
• Although the language is not completely clear, we read reason (1), above, to encompass a broad order from the government that requires individuals to stay home from work.
• Employees who are able to telework are not entitled to leave.
• Employees must receive 100% of their regular rate of pay for two weeks if their leave qualifies under reasons (1), (2), or (3), above, capped at $511 per day or $5,100 in aggregate. For leave qualifying under reasons (4), (5), and (6), employees must be paid at least 2/3 of their regular rate, capped at $200 per day or $2,000 in aggregate.
• The final version of the Act did not bar employers from changing current leave policies and benefits in response to the Act.

Emergency Paid Family and Medical Leave

• Health care provider employers may elect to exclude their employees from the provisions related to paid leave and position restoration.
• All other employees who have been employed 30 or more days are entitled to expanded protections under the FMLA, but only if they are unable to work (or telework) due to a need to care for their son or daughter whose school or childcare is closed or unavailable due to a COVID-19 emergency declared by the federal, state, or local authorities. The first two weeks of leave may be unpaid, but the employee can use paid emergency sick leave or employer-provided paid leave during this two-week period. Thereafter, the employee must be paid at 2/3 their regular rate of pay for weeks three through 12, capped at $200 per day or $10,000 total.
• Employees who are able to telework are not entitled to leave.

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