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Proposed Federal Legislation to Provide Emergency FMLA Leave and Two Weeks of Paid Sick Leave

We received many questions from clients over the weekend about the emergency bill addressing FMLA and paid sick leave passed by the House on Saturday, March 14.  While the Senate has not yet taken up the measure, emergency measures in some form are expected to pass the Senate later this week and employers should be prepared. The President has said he would sign emergency legislation passed by Congress.  Please understand that this is preliminary information that is subject to change based on what legislation ultimately is enacted.

Small businesses need to pay attention to this legislation, even if they are not currently covered under the FMLA.  The legislation approved by the House applies to small businesses who are not normally covered under the FMLA (those with fewer than 50 employees), but notably does not apply to larger businesses (those with 500 or more employees).  It is unclear what provisions may later be enacted to address larger employers.  Municipalities are covered under this legislation, even if they have 500 or more employees.

There are two main components of the legislation approved by the House:  First, the Emergency Family and Medical Leave Act would apply to any employer with fewer than 500 employees and would make any full-time or part-time employee who has been employed for 30 days eligible to take Emergency FMLA leave for up to 12 weeks for the following reasons:

  1. To comply with a directive to quarantine due to exposure and or because the employee has symptoms of COVID-19;
  2. To care for a family member where the family member could jeopardize the health of other individuals in the community because of the exposure to COVID-19 or if they have symptoms; or
  3. To care for a child of an employee due to school closure.

The House bill would allow the Department of Labor to exempt some employers with fewer than 50 employees for hardship.  However, it should be understood that this is not an automatic exemption and it is not clear what criteria will be imposed.  The emergency FMLA provisions would end December 31, 2020, unless otherwise extended.

The first 14 days of the FMLA leave is unpaid, but the employee can elect to substitute accrued vacation, personal or sick leave.  After the first 14 days of unpaid leave, employers must pay FMLA leave at no less than two-thirds of the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled to work.

Hopefully, the number of people with symptoms or exposure to COVID-19 requiring quarantine remains fairly low in number.  However, with all schools being closed in Connecticut the FMLA portion applying to care for a child would likely have a significant impact.

The second component of the House bill is the Emergency Paid Sick Leave Act, which would require employers with fewer than 500 employees to provide employees with 2 weeks of paid sick leave, paid at the employee’s regular rate, to quarantine or to seek a diagnosis or preventative care for COVID-19.  This also includes caring for a family member where the family member has been diagnosed with or is experiencing symptoms of COVID-19 or caring for a child due to school closure.  Full-time employees would be eligible for 80 hours at their regular rate of pay, and at two-thirds of their regular rate if they are caring for a family member, presumably including a child.  Employers would be eligible for tax credits for Emergency Paid Sick Leave and Family Medical Leave.

Please feel free to call us if you have any questions.  Good luck during these crazy weeks ahead.