By: Brian R. CarnieChelsea G. CaswellA. Edward Hardin, Jr.Scott D. HuffstetlerErin L. KilgoreMichael D. LoweZoe W. Vermeulen, and David M. Whitaker

On Wednesday, March 18, 2020, by a vote of 90 to 8, the U.S. Senate passed H.R. 6201 – the coronavirus paid leave bill.  The bill had bipartisan support and the support of both the U.S. Chamber of Commerce and the President.  President Trump signed the bill into law shortly after passage.

The House originally passed the bill after midnight on Saturday, March 14; however, before sending the bill to the Senate, the House made “technical corrections” to the bill.  Although dubbed as “technical corrections,” the House “corrections” were fairly significant.

The revised bill provides for two new types of federally-mandated paid leave in response to the coronavirus pandemic.  The first type of new paid leave falls under the umbrella of the existing federal Family and Medical Leave Act (“FMLA”) and requires employers to provide paid FMLA leave for coronavirus-related absences, but at two-thirds the employee’s pay (with monetary caps, and after 10 days of unpaid leave).  The second type of leave is new and requires employers to provide 80 hours of paid leave (for full-time employees) for certain coronavirus-related absences and illness.  The paid emergency/sick leave requirement is also subject to monetary caps.  More details follow below.

Covered Employers:  Both the expanded FMLA for coronavirus leave and new paid emergency/sick leave mandates apply to private employers with 500 or fewer employees and to covered public sector employers.  Under the FMLA, this is a significant expansion.

Eligible Employees:  To be eligible for paid leave under the expanded FMLA for coronavirus-related absences, the employee must have been on the employer’s payroll for 30 days.  Under the FMLA, this is a significant easing of the eligibility requirements for leave.  “Practical” notice of the need for FMLA leave related to the coronavirus is also required.   Unlike the FMLA, there is no “waiting period” for eligibility for paid emergency/sick leave, all full-time and part-time employees are immediately eligible for this benefit, and there is no requirement that the employee have been employed by the employer for any period of time before being eligible.

Reasons for Leave:  FMLA leave related to the coronavirus is limited to leave that is required to care for a minor child if the child’s school or “place of care” is closed or unavailable because of a public health emergency. Paid emergency/sick leave is more broad and is available under two general categories of circumstances: (i) illness/exposure related absences –  when an employee is unable to work because the employee is subject to quarantine or an isolation order, has been advised by a healthcare provider to quarantine or isolate themselves, or because the employee is experiencing coronavirus symptoms and is seeking a medical diagnosis; or (ii) absences necessitated to care for a person subject to a quarantine or isolation order, and absences to care for a child whose school or “place of care” has closed because of the coronavirus.

Paid Leave Entitlements:  The FMLA generally provides for unpaid leave; however, for coronavirus-related “qualifying needs,” after 10 days of unpaid leave, eligible employees are thereafter entitled to paid leave at two-thirds pay, subject to a $200 per day maximum or $10,000 in the aggregate.  Employees are allowed to substitute accrued but unused paid leave for the period of unpaid FMLA leave, but employers cannot require this substitution.  Consistent with the original FMLA, employees taking coronavirus-related FMLA leave are entitled to reinstatement to their position, unless the employer has fewer than 25 employees and several other qualifying factors are met.

For paid emergency/sick leave, full-time employees are entitled to 80 hours paid leave, and part-time employees are entitled to the same number of hours of paid leave they would work during a two-week period.  Unlike  FMLA coronavirus-related leave, there is no “waiting period” or period of unpaid leave.  The maximum amount of paid leave for “illness-related” leave is $511 per day or $5110 in the aggregate and $200 per day or $2000 in the aggregate for “care” leave.  Retaliation against employees for taking both types of leave is prohibited.  The failure to pay emergency/sick leave will be treated by the Department of Labor as a minimum wage violation.

Exclusions:  Regulations have not yet been drafted, but the bill authorizes the Secretary of Labor to exclude healthcare providers and first responders, and the Secretary can exempt employers with less than 50 employees, if leave would jeopardize the viability of the business as a “going concern.”

Tax credit:  To offset some of the costs to employers, the bill provides for tax credits for amounts paid by employers to meet their paid leave obligations under the bill.

Sunset:  The bill sunsets on December 31, 2020.

If you have questions, please contact Kean Miller labor and employment attorneys, Brian R. Carnie (318.562.2652), Chelsea G. Caswell (225.382.3405), A. Edward Hardin, Jr. (225.382.3458), Scott D. Huffstetler (225.389.3747), Erin L. Kilgore (225.389.3712), Michael D. Lowe (318.562.2653), Zoe W. Vermeulen (504.620.3367), and David M. Whitaker (504.620.3358).