House Guts Its Own Bill Before the Ink Is Dry: Update
March 17, 2020 | Lizanne Foley
What’s Changed Since Yesterday? Plenty
Amendments to Federal Emergency Paid Sick Leave and Family and Medical Leave
Yesterday (all my troubles seemed so far away…!) we sent a Client Alert explaining the recently passed House bill called the Families First Coronavirus Response Act. Late last night, the House gutted their own bill – and now the relief given to employees during this crisis is severely limited and changed from the original. The changes are below (and here is a red lined version if you would like a visual of this mess. ) Bismarck was right: laws are like sausages–you should never watch either one being made.
What is the Senate doing? Not much. The bill has been sent to the Senate for review and consideration this morning. The Senate has yet to assign a time to vote on this bill.
The Families First Coronavirus Response Act applies to all employers with less than 500 employees, and to public employers of any size. Employers who have employees working in the health care industry or are emergency responders can exclude their employees from eligibility under this Act.
Emergency Family and Medical Leave :
· Reasons for FMLA Leave: Employees can now only take up to 12 weeks of Emergency Family Medical Leave if they are unable to work or telework in order to care for a child (under 18 years of age) of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable due to a coronavirus.
· Covered Employers: There is now an optional exclusion for health care or emergency responder employees. The Secretary of Labor will be able to create regulations to exempt employers with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business.
- First 10 Days: The amended bill has reduced the initial unpaid leave time from 14 days to 10.
- After the First 10 Days: The remaining FMLA leave must be paid at 2/3s of an employee’s regular rate of pay, subject to a cap of $200 per day/$10,000 in the aggregate.
- Small Employers Exemption: Small employers with less than 50 employees will be exempted from civil FMLA damages in an FMLA lawsuit.
Emergency Paid Sick Leave :
- Covered Employers: The Secretary of Labor now has the authority to issue regulations exempting employers with fewer than 50 employees.
- Eligibility: Employers of health care employees or emergency responders can elect to exclude such employees from coverage.
- Qualifying Reasons for Sick Leave for Employees who are Unable to Work or Telework: Employees are now only eligible for sick leave if they are unable to work or telework, for a more detailed and specific list of qualifying reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- To obtain a medical diagnosis or care if the employee is experiencing the symptoms of COVID 19;
- To self-isolate as ordered by a health care provider because the employee is diagnosed with COVID 19 or to concerns related to COVID-19;
- To care for the employee’s family member who is subject to a Federal, State or local quarantine or isolation order related to COVID-19 or has been advised to self-quarantine by a healthcare provider for concerns related to COVID-19;
- The employee is 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; and
- To care for the child of such employee if the school or child care has been closed due to COVID 19, or the child care provider of such son or daughter is unavailable.
· Wage Payments : An employer must pay an employee at their regular rate of pay, that is no more than $511 per day or more than $5,110 in total for an employee’s own illness or quarantine, and $200 per day and $2,000 in total for any other qualifying reason. When an employee takes paid sick leave for a family member or child, the employer must pay the employee 2/3s of their regular rate of pay.
· If you Already have a PTO or Sick Leave Policy : An employer can now change their sick leave policies in reaction to this Act. An employee may choose to use the paid sick leave under this law prior to use of other leaves.
How will Employers be Reimbursed or Credited for these Leave Programs?
Employers will still be able to seek a tax credit of up to 100% of qualified paid sick and family leave wages under the Employer Social Security Contribution tax, but now they can also seek a tax credit against their Excise Tax.
Do you know from fluid? That is this bill. We will of course keep you updated.Questions? Contact us . We can help.
Oh and Happy St. Patrick’s Day. Wishing you the luck of the Irish
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