Coronavirus FMLA Update – (1) House Amends H.R. 6201; (2) Applying FMLA to COVID-19 to the Rest of the Employer World

by Marti Cardi, Esq. - Vice President, Product Compliance

March 17, 2020

 

Yesterday the U.S. House of Representatives passed some amendments to its Families First Coronavirus Response Act, H.R. 6201, originally passed just days ago on March 14.  You can read my original blog post summarizing the leave-related aspects of the bill here.  The amended bill is expected to go to the Senate, where it may be subject to more changes – or even rejection.  We will be watching for a final version (if there is one) and report on that as soon as possible.

In the meantime, here I provide a quick overview of what has changed under the House amendments.  I am not going to dive into much detail for the reasons above.  Then, keep reading for some pointers on applicability of FMLA in a coronavirus world to all covered employers.

PART 1 – FAMILIES FIRST CORONAVIRUS RESPONSE ACT

Emergency Family And Medical Leave Expansion Act

Covered employers and eligible employees.  Nothing has changed here – as drafted, it still applies only to employers with fewer than 500 employees, and employees are eligible for FMLA protection under the bill if they have worked for the current employer for 30 days or more.

Covered leave reasons.  These have been scaled back substantially to include only time off to care for a child under 18 whose school or daycare has been closed due to a public health emergency (now defined as relating to COVID-19 specifically).  And, that leave reason does not apply unless the employee is “unable to work (or telework) due to a need for leave.”

Covered family relationships.   The expansion of covered family relationships has been eliminated.  Back to parent, son or daughter, spouse, as usual.

Paid FMLA time.  The first 10 days of FMLA leave (compared to original 14 days) is unpaid, although the employee can elect to use available paid time off.  After that, the FMLA time is paid at 2/3 the employee’s usual rate of pay but now with caps of $200 per day and $10,000 total.

EMERGENCY PAID SICK LEAVE ACT

Covered employers and eligible employees.  No changes; still applies only to employers with 500 or fewer employees, and no eligibility requirements for employees.

Covered leave reasons. An employee may use paid sick leave to the extent that the employee is unable to work (or telework) due to a need for leave because:

    • The employee is subject to a Federal, State, or local quarantine or isolation order related
      to COVID-19.
    • The employee has been advised by a health care provider to self-quarantine due to concerns
      related to COVID-19.
    • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    • The employee is caring for an individual who is subject to an order as described in
      subparagraph (1) or has been advised as described in paragraph (2).
    • The employee is caring for a son or daughter of such employee if the school or place of care
      of the son or daughter has been closed, or the child care provider of such son or daughter
      is unavailable, due to COVID-19 precautions.
    • The employee is experiencing any other substantially similar condition specified by the Secretary
      of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary
      of Labor.

NOTE:  An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this leave requirement.

Amount of time off and pay. The amount of paid time off available remains at 80 hours for full-time employees and the number of hours typically worked over a 2-week period for part-time employees.  Leave for reasons (1), (2) and (3) is paid at the greater of the employee’s full pay or federal, state, or local minimum wage, but now capped at $511 per day or $5,110 total.  Leave for reasons (4), (5), and (6) is at 2/3 pay, now capped at $200 per day or $2,000 total.

Interaction with employer’s other paid leave policies is unclear. The amendments remove some of the prior language relating to this topic but the overall impact is not clear.

PART 2:  Current State – Applicability of FMLA to COVID-19

Remember, the Families First Coronavirus Response Act only attempts limited expansion of the FMLA.  The rest of the FMLA remains fully in effect.  There are many COVID-19-related leave issues not covered by H.R. 6201, especially due to the likely limitation of coverage to employers with fewer than 500 employees.

We have seen various articles encouraging employers to relax the FMLA rules to cover situations outside of the FMLA box. Think twice before you do that!  Remember, the FMLA is a law and neither the employer nor the employee can waive the applicability or nonapplicability of the law to a given situation. Employers need to consider other solutions for employees, such as flexible leave policies, but don’t call a leave FMLA if it is not.

The U.S. Department of Labor recently released a Question & Answer document (Q&A) relating to FMLA and COVID-19.  Three key things to take away:

  • “Serious health condition” definition still applies. The mere diagnosis of COVID-19 does not, in and
    of itself, invoke FMLA coverage.  The employee’s or family member’s condition must still meet the
    definition of “serious health condition” under the FMLA.  Nothing about the COVID-19 pandemic
    changes this.
As a reminder, a “serious health condition” means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.   29 C.F.R. §825.113.  Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care.  29 C.F.R. § 825.114.  As is relevant here, continuing treatment includes a period of incapacity that exceeds 3 consecutive days and also involves treatment(s) by a health care provider.  29 C.F.R. § 825.115.
  • Absences due to a quarantine are not covered by the FMLA. The DOL’s Q&A clearly states,
    Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected
    under the FMLA.” 
  • Absences due to school closures or child care complications related to COVID-19 are not covered
    by the FMLA
    . The DOL Q&A states, “[E]mployers are not required by federal law to provide leave to
    employees caring for dependents who have been dismissed from school or child care.” 

Given the potential for significant illness under some pandemic influenza scenarios, employers are encouraged by the DOL to review their non-FMLA leave policies to consider providing increased flexibility to employees and their families.  The DOL cautions, however, that federal law mandates any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

The DOL’s FMLA/COVID-19 Q&A contains a great deal more information, so well worth a read. The DOL has also published a Question & Answer document relating to the Fair Labor Standards Act and wage & hour issues that you can read here.