Tuesday, March 17, 2020

Coronavirus Update 3-17-2020: House guts the Families First Coronavirus Response Act before sending it to the Senate

For the time being, I have rebranded the Ohio Employer Law Blog as the Coronavirus Law Blog. I’ll be using this space to offer daily updates on what is happening regarding this public health emergency. Everything is moving and changing so quickly, and, frankly, nothing else seems to matter right now. When we all come out the other side, I will happily resume your regularly scheduled updates on worst employers and everything else.

So here’s where are on the morning of March 17, 2020 (Happy St. Patrick’s Day).

The Families First Coronavirus Response Act is headed to the Senate, albeit in a form very different than what the House initially passed early Saturday morning.

Yesterday evening, the House passed a “technical corrections” package revising the original bill. But the changes were hardly technical. In fact, they gut many of the bill’s FMLA and sick leave provisions.

Regarding the proposed FMLA protections for coronavirus-related leaves—
  • Paid FMLA will no longer be available for self-care or self-quarantine, or care of family member sick or under quarantine.
  • Instead, FMLA will only be available to an employee to care for a minor child because of a school closure or childcare-provider loss.
  • It also defines an inability to work during a childcare-related leave to include an inability to telework.
  • Shortened the initial period of unpaid leave from 14 days to 10 days.
  • It eliminates the revised and expanded definition of “parent” and the expanded inclusion of leave to care for next of kin and grandparents.
  • It caps the amount of paid FMLA at $200 per day or $10,000 in the aggregate.

Regarding the proposed paid sick days for coronavirus-related absences—
  • It limits the availability of paid sick days to employees who are unable to work or telework because of one of the qualifying coronavirus-related absences.
  • It tightens the definitions of qualifying paid sick day events.
  • It allows an employer of health care employees or emergency responders to elect to exclude such employees from coverage.
  • It expands the Secretary of Labor’s authority to issue regulations exempting employers with fewer than 50 employees to apply to paid sick days.
  • It caps the amount of paid sick leave at $511 per day and $5,110 the aggregate for an employee's own illness or quarantine, and $200 per day and $2,000 in the aggregate for any other qualifying reason.
  • It limits the amount of the tax credit self-employed individual can take for paid sick leave.

You can read the revised bill here.

Politico reports that the Senate (in which many Republicans, including Majority Leader Mitch McConnell, initially expressed opposition) will take up this bill as early as later today, and could send it on as is to President Trump to sign. Stay tuned. It will have an effective date of 15 days after signature into law by the President, and will impose new obligations on all employers with fewer than 500 employees that will require policies, postings, and paid-leave administration.

As imperfect as the original bill was, as currently drafted the FFCRA does not go nearly far enough to provide relief in this crisis. In fact, this draft, while much more business-friendly, guts many of the protections employees will need the most.

If you’re an employer, and Congress won’t do right by your employees, you should. Be flexible. Let employees work remotely if possible. Pay them if and while you can if they are ill, or under quarantine, or with a child who can no longer attend school.

How we act over the next few months will define who we are as a nation and what we will look like when we come out on the other side. Please, think about this as you make decisions about your employees. What we do now will have a long-lasting effect on our country.