The “Families First Coronavirus Response Act” (the “Bill”), a broad response to the COVID-19 coronavirus pandemic, has passed the House of Representatives by a vote of 363-40 and is expected to pass in the Senate and be signed into law by President Trump.  The Bill would impose significant obligations on covered employers, including requiring covered employers to provide employees who have a qualifying coronavirus-related need with up to 2 weeks of paid sick leave and up to 12 weeks of FMLA leave, most of which is partially paid.  Although subject to change, the most recent iteration of the Bill has the following key provisions:

  • Covered Employers: Private employers with 500 or more employees are exempt from the Bill’s paid sick leave and FMLA leave requirements.  The Secretary of Labor may issue regulations exempting businesses with fewer than 50 employees from the FMLA leave requirements, but only when those requirements “would jeopardize the viability of the business as a going concern.”
  • Covered Employees: An employee is eligible for coronavirus-related FMLA leave if he or she has worked for the employer for at least 30 calendar daysAll employees are eligible for the Bill’s paid sick leave benefits, which may be accessed immediately.
  • Qualifying needs: The Bill’s FMLA leave and paid sick leave benefits are available for a variety of reasons, including (but not limited to):
    • in the case of paid sick leave only, self-isolating due to a diagnosis of coronavirus, or obtaining medical diagnosis or care due to the symptoms of coronavirus;
    • complying with a public official or health care provider’s recommendation to self-quarantine because the employee has been exposed to the coronavirus or exhibits symptoms of the coronavirus (notably, in the case of FMLA leave, the employee must be unable to perform his or her job as a result of being quarantined);
    • caring for a family member who is quarantined; and
    • caring for a child under 18 due to school or daycare closings or unavailability of the child’s child care provider.
  • FMLA leave: Eligible employees may take up to 12 weeks of FMLA leave for a qualifying need.
    • The first 2 weeks of leave may be unpaid, or an employee may choose to substitute another type of paid leave (e.g., vacation, personal leave, etc.), although employers may not require them to do so.
    • After the first 2 weeks, employees must receive two-thirds of their usual pay for the duration of the leave.
    • The leave is job-protected with certain limited exceptions for employers with fewer than 25 employees.
  • Paid Sick Leave: The Bill provides the following paid sick leave benefits.
    • Employers must provide 80 hours of paid leave for full-time employees.
    • Part-time employees are entitled to paid sick time equal to the number of hours they work, on average, over a 2-week period.
    • Leave related to the employee’s own coronavirus-related needs is paid at 100-percent of the employee’s usual rate of pay.
    • Leave related to care for a family member or a child whose school has closed or whose child care provider is unavailable due to the coronavirus is paid at two-thirds of the employee’s regular rate.
    • Coronavirus-related paid sick leave is in addition to employer’s existing paid leave policies. Employers may not require employees to exhaust other employer-provided paid leave benefits before using coronavirus-related paid sick leave, and may not amend their paid leave policies to make the benefits run concurrently.
  • Notice: The Bill requires that employers post a notice, to be prepared by the Secretary of Labor, informing employees of their leave rights under the Bill.
  • Tax Credits: The Bill provides employers with certain tax credits in order to help defray the cost of the benefits.

The Bill is subject to change as it moves through the Senate in the upcoming days, so stay tuned for further developments.  Employers with questions are encouraged to contact the authors of this post, or the lawyer with whom you normally work at Hogan Lovells.