Meyers, Roman, Friedberg & Lewis has a Coronavirus Response Team. Contact Jon Hyman to help with how your business should
continue to respond to this national emergency.


Monday, May 18, 2020

Coronavirus Update 5-18-2020: House proposes significant expansions to FFCRA paid leave


Late Friday, the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R.6800. Among other things, it proposes significant clarifications and expansions to the Emergency Family And Medical Leave and Emergency Paid Sick Leave provisions of the Families First Coronavirus Response Act.

What are these proposed changes?

Emergency Family And Medical Leave
  • Expands emergency FMLA coverage to all employers, not just those with less than 500 employees. 
  • Expands the definition of "parent" to include foster parents, adoptive parents, stepparents, parents-in-law, a parent of a domestic partner, and someone who stood in loco parentis to an employee when the employee was a child.
  • Provides emergency FMLA to an employee who is —
    • self-isolating because of the employee's own COVID-19 diagnosis;
    • obtaining a medical diagnosis or care if the employee is experiencing the symptoms of COVID–19;
    • complying with a recommendation or order by a public official with jurisdiction or a health care provider to self-isolate on the basis that the physical presence of the employee on the job would jeopardize the employee’s health, the health of other employees, or the health of an individual in the household of the employee because of the possible exposure of the employee to COVID–19 or because of the exhibiting of symptoms of COVID–19 by the employee;
    • caring for or assisting a family member (also defined in the amendments) because the family member is self-isolating because of a COVID–19 diagnosis, because the family member is experiencing symptoms of COVID–19 and needs to obtain medical diagnosis or care, or because a public official or health care provider makes a recommendation or order that the presence of the family member in the community would jeopardize the health of other individuals in the community because of the possible exposure of such family member to COVID–19 or exhibiting of symptoms of COVID–19; and 
    • caring for a family member who is incapable of self-care because of a mental or physical disability or is a senior citizen, if the place of care for such family member is closed or the direct care provider is unavailable due to COVID–19.
  • Permits an employee to elect, but an employer cannot require, the substitution of paid time off for emergency FMLA.
  • Provides that COVID-19 FMLA leave does not count against an employee's 12-week entitlement of traditional FMLA.
  • Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
  • Prohibits an employer from requiring certification by an employee in support of an emergency FMLA leave to not earlier than five weeks after the date on which the employee takes such leave.
  • Extends the sunset date of emergency FMLA from 12/31/2020 until 12/31/2021.

Emergency Paid Sick Leave
  • Clarifies that paid sick leave under the FFCRA must be offered in addition to any paid leave offered by an employer, and prohibits an employer from changing its policies to avoid providing any additional paid leave.
  • Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
  • Prohibits an employer from requiring certification by an employee for the need for paid sick leave for leaves less than three consecutive days of paid sick time, and further prohibits an employer from requiring such certification earlier than seven workdays after an employee returns to work.
  • Provides for a new allotment of 80 hours of paid sick leave if an employee changes employers.
  • Requires restoration of an employee to the same or equivalent position at the end of a period of paid sick leave.
  • Extends the sunset date of paid sick leave from 12/31/2020 until 12/31/2021.

Mitch McConnell has already said that this bill is DOA in the Senate in its current form, but it's unclear if this statement specifically referenced the FFCRA amendments. Stay tuned to see if any of these proposed amendments gain any traction in the Senate. I'll keep everyone updated as this bill progresses. 


* Image by Source (WP:NFCC#4), Fair use, Link