Just three days ago, the U.S. House of Representatives passed sweeping legislation providing employees FMLA and paid sick leave in response to the coronavirus (COVID-19).

Before the ink of that legislation dried, however, the House late last night made a number of so-called “corrections” to the original legislation that considerably modifies key aspects of the law before sending the bill onto the U.S. Senate, presumably this morning.

As much as I have been knee-deep in this legislation over the past few days, my Littler colleagues Mike Lotito, Jim Paretti, Stephanie Mills-Gallan and Sebastian Chilco haven’t slept as they’ve analyzed these changes for our benefit.  I borrow heavily from their newly-released analysis of the House’s amendments in outlining the key changes passed by the House (pdf):

EMERGENCY FAMILY AND MEDICAL LEAVE ACT

Reasons for FMLA Leave: Under the original bill, an employer must provide up to 12 weeks of FMLA leave to an eligible employee for “a qualifying need related to a public health emergency.”  This “qualifying need” is limited now to instances where an employee is unable to work or telework due to the need to care for a child if the child’s school or place of child care has been closed or the child care provider is unavailable, due to a public health emergency.

First 14 days of FMLA Leave: Remember when I told you that the original bill provided for an initial 14 days of unpaid leave?  In the amended bill, this number is reduced to 10 days.  As before, employees have the option of using their accrued paid leave for this initial period.

After the first 14 days: In a sharp departure from the original legislation, the remaining FMLA leave must be paid at two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work.  Notably, the amended legislation also (for the first time) limits the amount of required pay for leave to no more than $200 per day and $10,000 total.

Small Employers Can’t Be Sued: In a matter of one line, the amended legislation appears to exempt employers with fewer than 50 employees in a 75-mile radius from civil FMLA damages in an FMLA lawsuit. Go figure.

EMERGENCY PAID SICK LEAVE ACT

Reasons for Sick Leave

Under the amended version, employers now would be required to provide paid sick leave to an employee who is unable to work or telework because:

  1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
  3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. the employee is caring for an individual subject or advised to quarantine or isolation;
  5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
  6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Designation of paid sick leave: Notably, the revised bill seems to have removed the language in the bill that originally passed that emergency paid sick is in addition to any other paid sick leave provided by the employer on the day before the enactment of the Act (and employers are prohibited from modifying sick leave policies to avoid this requirement). While the amended version still indicates that emergency paid sick is in addition to normal PTO, paid sick, and vacation benefits, it is now silent as to whether any emergency paid sick leave voluntarily provided by an employer before the effective date of the law may count towards satisfaction of any federal employer mandate.

Health care providers and Emergency Responders need not apply:  Notably, the House’s amended legislation allows an employer to deny health care providers and emergency responders sick leave, and direct the Department of Labor to issue regulations to exclude certain health care providers and emergency responders from the definition of employee

Amount of Pay Adjusted: The amendment would limit paid leave to $511 per day ($5,110 in total) where leave is taken for reasons 1, 2 and 3 above (dealing with an employee’s illness or quarantine); and $200 per day ($2,000 in total) where leave is taken for reasons 4, 5 or 6 (caring for others or school closures).

More questions than answers at this point?

As I mentioned in my last post, keep in mind this is simply the House version of the bill.  Based on the latest reports, the Senate may not take up this bill in earnest till later this week.