The Final Versions of the New Federal Leave Acts

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March 19, 2020
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On the evening of March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA).  Although having a life of just one week from introduction in the House to presidential signing, this new law has a tortured history.  After being introduced on Wednesday, March 11, 2020, there commenced two days of intensive negotiations between Speaker Pelosi and Treasury Secretary Mnuchin, the latter operating on behalf of the White House.  After midnight on Saturday, March 14, 2020, the House passed by a wide margin a version of HB6201.  At the Saturday morning press conference, both Speaker Pelosi and the White House trumpeted the hard negotiations and the fruit of those negotiations.  There was a passing reference that the parties had agreed to some “technical changes” – mere housekeeping – on Monday morning before sending on to the Senate.  Given that President Trump had endorsed the Saturday morning version of the bill, it was widely believed that the House’s Saturday morning version would become the final version of the law signed by President Trump.  Of course, there were those “technical changes”!

On Monday, March 16, the Saturday morning version hit a snag.  With House members having left town, the House leadership needed for the technical changes to be made without objection.  There were objections.  Thus, the bill went back through the sausage-making machine.  When it came out of that process on Monday evening, there were changes that went well-beyond technical clean-up.  But there had already been wide dissemination of the features of the Saturday morning bill – both in the popular media and by management lawyers.  There appears to be much confusion in the business community as to what is in the final version and what fell out.  Understandably so.  Thus, we present this guide to understanding the two new leave acts – the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.  (The provisions on enhanced unemployment compensation and tax credits remain substantially unchanged.)  For reference, the “final version of the law” is self-explanatory.  The “Saturday morning version” and the “Pre ‘Technical Changes’ Version” are used interchangeably.  With regard to the Emergency Family and Medical Leave Expansion Act, some limited commentary is offered on the effect that the amendment has on existing law.

Changes to the Emergency Family and Medical Leave Expansion Act Provisions

Effective Date and Sunset Provision

A.  Final Version

Inasmuch as President Trump signed the bill on the evening of March 18, 2020, the new law will go into effect no later than April 2, 2020.  Although the bill contained the unusual language of “not later than 15 days after enactment,” there does not appear to be anything in the bill which would trigger applicability any sooner than on the 15th day.  The law is temporary, and, unless extended, will expire on December 31, 2020. 

B.  Pre “Technical Changes” Version

The Saturday version of the bill also contained the 15-day clause and the sunset provision. 

C.  Changes from Existing Law

Once this temporary bill expires, then this provision especially tailored for the Coronavirus pandemic will fall out of the Act, and the FMLA will return to its original format.

 

Covered Employers

A.  Final Version

The new law applies to employers with fewer than 500 employees, but see comments below with regards to protections afforded “small employers.”

B.  Pre “Technical Changes” Version

The Saturday version of the bill also applied to employers with fewer than 500 employees.  No changes. 

C.  Changes from Existing Law

The FMLA has applied just to employers with 50 or more employees.  Also, to be an eligible employee, one has to be employed at a worksite with more than 50 employees or be within 75 miles of that threshold.  For qualified coronavirus-related leave, that is changed.  There is no small workplace exception.  Moreover, the regular FMLA provides a working methodology for the calculation of headcount – the 50-employee threshold must be sustained in 20 or more work weeks in the current or previous calendar year.  An employee is considered to be employed each working day of the calendar week if the employee works any part of the week.  The work weeks do not have to be consecutive.  No such guidance is given in the new Act for counting employees up to the 500-employee ceiling.  Of course, the minimum threshold of 50 still applies to all other conditions covered by the FMLA, and is only amended with regard to covered coronavirus-related absences.  Accordingly, employers may have some employees who are covered for just this new feature of the FMLA.
 

Eligible Employees - Tenure

A.  Final Version

The final version of the law provides that an employee has to be employed for at least 30 calendar days by a covered employer.  The law does not state that those 30 days have to be consecutive.

B.  Pre “Technical Changes” Version

The Saturday bill contained the same tenure requirement.

C.  Changes from Existing Law

For the remainder of conditions covered under the FMLA, an employee must have worked for the employer for at least 12 months as of the date the FMLA leave is to start.  Moreover, the employee must have at least 1,250 hours of service for the employer during the 12-month period immediately before the date the FMLA leave is to start.  Accordingly, for coronavirus-leave, the required tenure has been shortened considerably.  

 

Triggering Event

A.  Final Version

The triggering event under the final version of the law is a “public health emergency.”  The term means an emergency with respect to COVID-19 as declared by federal, state or local authority.  Note that the final version uses the more specific name for the coronavirus.  We are currently in a public health emergency; thus, terms of the Act are triggered as soon as the law becomes effective.  In the remote chance that the emergency is lifted before the law sunsets, then the leave entitlement would be rescinded.  

B.  Pre “Technical Changes” Version

The Saturday version of the bill contained the same language with regard to a definition of public health emergency.

C.  Changes from Existing Law

At the federal level, we have not had a law that provided paid or unpaid leave during health emergencies. 

 

Qualifying Conditions

A.  Final Version

An employee is entitled to leave if he or she is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency.  Clearly, that is happening nationwide.

B.  Pre “Technical Changes” Version

The Saturday version of the bill set forth a number of categories by which an employee could qualify for leave.  In addition to the school closure category, employees could receive expanded FMLA leave due to being ordered into isolation, being diagnosed with the coronavirus, needing time to seek a diagnosis, or to tend to a family member.  An employee can still receive unpaid leave under the FMLA for all of that, but he or she will need to meet the established requirements of the FMLA, such as having a “serious health condition” and providing a medical certification.  Moreover, the Saturday version of the bill did not provide that an employee was not eligible for leave if the employee was able to telework.  Rather, as that version of the bill was written, employee/parents seemed to have an absolute right to elect paid leave and to convert to non-work status.

C.  Changes from Existing Law

The FMLA has never provided paid or unpaid leave to parents on account of a school closing, regardless of the reason for the closure.  Moreover, the FMLA has never had a paid leave component.

 

Special Rules for Healthcare Workers

A.  Final Version

Under the final version of the law, an employer of an employee who is a healthcare provider or an emergency responder may elect to exclude such employee from the protection of this new leave.  Moreover, the Department of Labor has the authority to issue regulations to exclude certain healthcare providers and emergency responders from the definition of eligible employee.  With employers being given the right to exclude healthcare workers and emergency responders, one wonders what is left for the Department of Labor to regulate in this regard.

B.  Pre “Technical Changes” Version

The Saturday version of the bill had the provision allowing the Department of Labor to issue regulations covering exclusion of healthcare providers and emergency responders.  It did not give employers the unfettered right to exclude those employees from coverage.

C.  Changes from Existing Law

Healthcare workers are still covered under the regular provisions of the FMLA.  They can still have a “serious health condition” and be certified off work for unpaid leave.  The practical effect of the new law is that healthcare employers can require those in direct patient care to work notwithstanding the burdens of school closures.  It goes without saying that direct care givers usually cannot telework.

 

“Small Employers” Exception

A.  Final Version

The final version of the law provides the Department of Labor with the authority to issue regulations to exempt small business with fewer than 50 employees from the requirements of the expanded act when the imposition of such requirements would jeopardize the viability of the business as a going concern.  At this point, we do not have any indication as to how those regulations would be constructed.  Most likely, the Department would set out some type of a multi-factor test that the employer would need to meet.  Declaring such an exemption might be  HR and PR headaches.

B.  Pre “Technical Changes” Version

The same provision granting the Department of Labor regulatory authority was in the Saturday version of the bill.  

C.  Changes from Existing Law

If a small employer can successfully invoke the exception granted by this section, then it would effectively cancel out this new law and the small employer would not be subject to any aspect of the FMLA.

 

Initial Paid Days

A.  Final Version

The final version of the law provides that the first 10 days of the new FMLA leave may be unpaid.  An employee can elect to use accrued vacation or sick leave to cover those first 10 days.  Of course, an employee could also opt to use the new emergency paid sick leave.  

B.  Pre “Technical Changes” Version

The Saturday version of the law provided that the first 14 days of the FMLA leave could be unpaid.

C.  Changes from Existing Law

Of course, the entire 12-week allotment of leave under the FMLA has been without pay.  Such remains the case for any other qualifying condition under the FMLA.  It is only a school or childcare closure that triggers paid leave under the new law, and, then, only if the employee cannot telework.

 

Amount of Leave

A.  Final Version

The final version of the law allows 12 weeks of leave, with the first 10 days being unpaid, due to school closures.  It is unclear as to how much leave an eligible employee would have if he or she had already used some of their FMLA leave during the year.  It is reasonable to assume that this new paid leave could be used in an intermittent fashion.  For example, one parent could opt to alternate with another parent in taking the leave.

B.  Pre “Technical Changes” Version

The Saturday version of the bill provided 12 weeks of leave, with the first 14 days being unpaid.  There were more qualifying conditions which would have provided for paid leave.  All but leave caused by school closures have been stripped from the final law.  

C.  Changes from Existing Law

The FMLA has provided unpaid leave.  It has been a job-protection law, not an income-protection law.

 

Rate of Pay

A.  Final Version

An employee can receive two-thirds of their regular pay for absences caused by school closures and the resulting childcare responsibilities.  If the employee can work from home, however, then they do not qualify for the leave.  They would be paid their regular salary for working.

B.  Pre “Technical Changes” Version

The Saturday version of the bill provided two-thirds pay for all coronavirus-related leave.  

C.  Changes from Existing Law

The remainder of FMLA leave (unrelated to school closures) is unpaid.

 

Amount of Pay

A.  Final Version

The final version of the law includes a cap on per-day and aggregate pay that an employee can receive under this new law.  The employee cannot exceed more than $200 per day and $10,000 in the aggregate.

B.  Pre “Technical Changes” Version

The Saturday version of the bill did not contain any caps on the amount of paid leave.

C.  Changes from Existing Law

Given that FMLA leave is otherwise unpaid, there are no caps mentioned in the rest of the law.

 

Restoration of Employment

A.  Final Version

The final version of the law provides that employers with fewer than 25 employees may not have to restore an employee to work after approved leave if doing so would cause an economic hardship to the employer.  The law sets forth certain conditions that the employer must satisfy in order to avoid the obligation to restore employment.  In any event, the employer may have to place the employee on a one-year preferential recall list.  

B.  Pre “Technical Changes” Version

The Saturday version of the bill contained the same “small employer” exception.

C.  Changes from Existing Law

The remainder of the FMLA has very strong job protection provisions.  Of course, with regard to non-coronavirus issues, employers with fewer than 50 employees are not covered by the law.

 

Emergency Paid Sick Leave Act

Effective date and sunset of the law

A.  Final Version

The final version of the law provides that it will become effective not later than 15 days after enactment.  Barring some surprise, that appears to be April 2, 2020.  This temporary law will drop out of the Code on December 31, 2020. 

B.  Pre “Technical Changes” Version

The Saturday version of the bill contained the same effective date and sunset provision.

 

Covered Employers

A.  Final Version

Employers with fewer than 500 employees are covered by this paid sick leave act.  The law does not provide any guidance as to how those employees are counted.

B.  Pre “Technical Changes” Version

The Saturday version of the bill contained the same definition for covered employer.

 

Eligible Employees - Tenure

A.  Final Version

The final version of the law provides that paid sick leave shall be available for immediate use by the employee regardless of how long the employee has been employed by the employer.

B.  Pre “Technical Changes” Version

The Saturday version of the bill contained the same provision.

 

Triggering Event

A.  Final Version

Unlike the FMLA Expansion Act, this law does not include a definition of a “public emergency”; nor does it have a provision triggering application based upon such an emergency.  Rather, it ties eligibility to issues relating to COVID-19, the more specific name for the coronavirus now affecting the United States.

B.  Pre “Technical Changes” Version

The Saturday version of the bill contained a provision that put it into effect upon the declaration of a “public health emergency.”  It is a distinction without a difference, however.  Under either version of the bill, the law would go into effect due to the current pandemic.

 

Qualifying Conditions

A.  Final Version

Under the final version of the law, an employee can qualify for emergency paid sick leave if the employee is unable to work (or telework) due to a need for leave because:
  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19; 
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to a quarantine or isolation order or the individual has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; 
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable; and
  6. The employee is experiencing any other conditions substantially similar to the COVID-19 virus.  The government will issue later guidance, but it is assumed that this provision refers to employees who are having symptoms, but cannot be tested for one reason or another.

B.  Pre “Technical Changes” Version

The Saturday version of the bill contained five ways by which an employee could qualify for emergency paid sick leave.  There was no catch-all provision for “substantially similar” conditions.  The first draft did not contain a requirement that employees had to telework if possible.  It allowed employees to qualify without regard to whether they could work from home.  The qualifying conditions were similar to the final version, but had more specificity.  For example, the employee could be off work to care for a family member who was self-isolating because they had been diagnosed with the coronavirus or were experiencing symptoms of the coronavirus and needed to obtain medical diagnosis or care.

 

Special Rules for Healthcare Workers

A.  Final Version

The final version of the law added language after the six categories of coverage that allow an employer of a healthcare provider or an emergency responder to elect to exclude such employee from application of the law.  In a redundancy, the Act also provides that the Secretary of Labor has the authority to issue regulations excluding certain healthcare providers and emergency responders from the definition of a covered employee by allowing such an employer to opt-out.

B.  Pre “Technical Changes” Version

The Saturday version of the bill did not contain any exclusions from coverage for healthcare employees or emergency responders.

 

Small Employer Exception

A.  Final Version

The final version of the law provides that the Department of Labor shall have the authority to issue regulations exempting small businesses with fewer than 50 employees from the application of the law when the imposition of required leave would jeopardize the viability of the business as a going concern.  The law does not provide any guidance as to what those regulations will be in final form.  Most likely, the Department of Labor will devise some type of multi-factor test, which an employer can invoke, without guarantee that such would be sustained by a reviewing court.

B.  Pre “Technical Changes” Version

The Saturday version of the bill did not give any authority to the Department of Labor to develop regulations excepting small employers from the laws of coverage.

 

Amount of Leave

A.  Final Version

The final version of the law entitles a full-time employee to a bank of 80 hours of sick leave.  Part-time employees are granted hours of sick leave in proportion to the amount of time that they work.

B.  Pre “Technical Changes” Version

The Saturday version of the bill gave the same entitlement to a bank of leave.

 

Rate of Pay

A.  Final Version

If an employee is subject to a federal, state, or local quarantine or isolation order, or has been advised by healthcare provider to self-quarantine due to concerns related to COVID-19, or the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis, then the employee will receive pay equal to their regular rate of pay.  In other words, for the first three categories of qualifying conditions, the pay is at 100%.  On the other hand, if the employee needs the leave to care for an individual or to care for a child who is out of school, then the employee is entitled to no more than two-thirds of their pay.  That same two-thirds proportion applies to the new sixth category – that is, an employee who is experiencing a substantially similar condition.

B.  Pre “Technical Changes” Version

The Saturday version of the bill did not contain any caps on maximum benefits.

 

Amount of Pay

A.  Final Version

The final version of the law includes caps per day and in the aggregate.  If an employee is taking leave for the first three categories set forth in the law (each pertaining to the employee’s own health), then the employee is not entitled to more than $511.00 per day and $5,110.00 in the aggregate.  If the employee is claiming sick leave due to care for an individual or because school is closed, then the employee is not entitled to receive more than $200.00 per day and $2,000.00 in the aggregate.  Although the sixth category pertains to the employee’s health – “a substantially similar condition” – an employee relying upon that category of leave is subject to the lower caps.  

B.  Pre “Technical Changes” Version

The Saturday version of the bill did not contain any caps on maximum benefits.

 

Employer’s with Existing Policies

A.  Final Version

The final version still provides that an employee may first use the granted sick leave under the law before being required to use other paid leave.  The final version of the law, however, struck the provision that barred employers from changing their existing leave policies after the date of enactment. 

B.  Pre “Technical Changes” Version

The Saturday version of the bill also provided that an employer could not force an employee to use other leave before taking advantage of the new paid sick leave.  This earlier version, however, also decreed that employers could not change their sick leave policies.  Therefore, if an employer had a generous sick leave policy, then it could not diminish that policy after the new federal sick leave went into effect.  That ban has been stripped from the final version.