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Mar 2020
16
March 16, 2020

HR 6201 – The Impact to Employers and Employees

Late Friday night, the House of Representatives passed a bill aimed at containing the widening effects of COVID-19 (HR 6201). The President has already indicated he will sign it. If passed by the Senate, HR 6201 would create several significant new leave and pay obligations for covered employers.

First, HR 6201 would create the "Emergency Family and Medical Leave Expansion Act" which would give eligible employees of companies with fewer than 500 employees the right to take leave from their jobs for certain qualifying needs. An eligible employee is one who has been employed by the employer for more than 30 days and who has a qualifying need related to a public health emergency. Qualifying needs are:
 
  • To quarantine due to the exposure of the employee to COVID-19;
  • To quarantine due to the employee exhibiting symptoms of COVID-19;
  • To care for a family member (defined more broadly than for other leaves under the FMLA) who was exposed to COVID-19 or who is exhibiting symptoms of COVID-19; and
  • To care for a child under the age of 18 whose school (K-12) or child-care was closed due to the public health emergency.

If an employee takes qualifying leave under the FMLA Expansion Act, the employee can take the first 14 days of leave as unpaid leave. The employee may elect to use any accrued leave instead of taking unpaid leave, but the employer cannot force any employee to take accumulated leave. After the 14 days, the employer shall provide paid leave for each additional day of qualifying leave. The payment for leave must be equal to at least 2/3 of the employee’s regular rate of pay multiplied by the number of hours the employee otherwise would have been scheduled to work. Employees are entitled to take up to 12 weeks of qualifying leave, which is in addition to leave for other reasons covered by the FMLA.

HR 6201 gives the Secretary of Labor the right to exempt employers with less than 50 employees from the leave obligation if it is determined that the obligation would “jeopardize the viability of the business as a going concern.” It remains to be seen whether these smaller employers would be exempted.

HR 6201 would also create the "Emergency Paid Sick Leave Act" which will require all employers under 500 employees to provide paid sick time to all employees (even new hires) for any of the following reasons:
 
  • To self-isolate because the employee:
    • has been diagnosed with COVID-19, or
    • needs to obtain a medical diagnosis or care due to experiencing the symptoms of COVID-19
  • To comply with a recommendation or order by a public official or health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because the employee:
    • was exposed to COVID-19, or
    • exhibits symptoms of COVID-19
  • To care for or assist a family member of the employee who is:
    • self-isolating due to a COVID-19 diagnosis, or
    • is experiencing COVID-19 symptoms
  • To comply with a recommendation or order by a public official or health care provider on the basis that the physical presence of the family member in the community would jeopardize the health of others because the family member:
    • was exposed to COVID-19, or
    • exhibits symptoms of COVID-19
  • To care for a child if the school or place of care has been closed

If the employee qualifies for paid sick time, the employer must grant a full-time employee 80 hours of paid leave and must grant part-time employees the number of hours that such employee works on average over a two-week period. Employees must receive full pay for time missed due to their own health reasons, and must be paid two-thirds (2/3) for time missed to care for a family member or child.

Emergency Paid Sick Leave is in addition to any other paid leave the employee is entitled to, so for Michigan employers, that means it is in addition to leave time under the Paid Medical Leave Act. At present, we do not know whether employers could require employees to use sick leave under the Emergency Paid Sick Leave Act for the first two weeks of unpaid leave taken for a qualifying need under the FMLA Expansion Act.

Finally, among other things, HR 6201 will provide dollar-for-dollar payroll tax credits for employers to help offset the cost of paid FMLA leave and paid sick leave. It would also prohibit all group health plans, health insurance issuers and individual health insurance plans from imposing any cost-sharing requirements related to COVID-19. This would include deductibles, copayments and coinsurance.

Both the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act would become effective fifteen (15) days after signed into law by the President, and both would expire on December 31, 2020.

We will continue to monitor this rapidly changing situation and provide additional updates as they become available. In the meantime, if you have questions, please contact any member of Warner’s Labor and Employment Practice Group.
 

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