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House Passes Coronavirus Bill with Immediate Impact on Employers Upon Enactment

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On March 14, 2020, the House passed H.R. 6201 known as the Families First Coronavirus Response Act (the Act). While there are reported talks about potential "technical corrections" to the Act that may warrant a second vote by the House, it is anticipated that any such changes will be addressed and that the Act will be considered by the Senate and possibly signed into law soon. The current version of the legislation provides paid leave, establishes free testing for the coronavirus, protects public health workers, and provides benefits to children and families. Employers should watch the Act closely because the provisions contained therein, including three key provisions relating to the workplace, would take effect immediately upon enactment. This alert will provide a brief overview of the current version of these key provisions. 1

First, the Health Care Worker Protection Act, which is Division C of the Act, requires the Secretary of Labor to publish (30 days after enactment) an emergency temporary standard to protect health care workers and other employees in industries the CDC and OSHA identify as having an elevated risk of exposure to the coronavirus. The standards will require employers to develop and implement a comprehensive infectious disease exposure control plan that is, at a minimum, based on the 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings provided by the CDC for severe acute respiratory syndrome (SARS). The Act amends the Social Security Act to make these requirements apply to hospitals and skilled nursing facilities that are not otherwise subject to OSHA or a state occupational safety and health plan as a condition of receipt of Medicare funds. A permanent standard shall be published no later than six months after publication of the temporary standard.

Second, the Emergency Paid Leave Act, which is Division D of the Act, would amend the Family and Medical Leave Act (FMLA) to require covered employers (those with 500 or fewer employees and government employers) to provide Public Health Emergency Leave benefits for eligible employees (those who have worked at least 30 days). The definitions of both "employee" and "employer" would be amended to provide more expansive coverage for the FMLA emergency health leave. Similarly, the term "health care provider" would be amended to include nurse practitioner and the terms "family," "parent" and "child" would be broadened, e.g., to include parents and children of domestic partners. Further, "parent" includes step-parents, parents-in-law, and parents of a domestic partner. The amendment also expands the reasons for leave under the FMLA to include a "Qualifying Need Related to a Public Health Emergency," which means a public health emergency has been declared and leave is needed for one of the following reasons:

  1. To comply with a recommendation or order by a public official with jurisdiction or a health provider that the employee's physical presence at work would jeopardize the health of others because of that employee's exposure to the coronavirus or exhibition of symptoms and the employee cannot perform the job duties and comply with the recommendation;
     
  2. To care for a family member for whom a public health official with jurisdiction or a health care provider determines the person's presence in the community would jeopardize the health of others because of his or her exposure to coronavirus or exhibition of symptoms; or
     
  3. To care for the son or daughter of the employee if the school or place of care has been closed or the child care provider is unavailable due to a public health emergency.

The leave is unpaid for the initial 14 days and cannot be taken intermittently or on a reduced work schedule. An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for this new emergency health leave, but an employer may not require an employee to substitute any such leave time for the emergency health leave. After the 14-day period, employers must provide paid leave, which is at least two-thirds of the employee's usual pay for the number of hours the employee would normally work. There are also some notice requirements where practicable and foreseeable, and the employer may seek certification but may not require such documentation until three weeks after the date on which the employee takes leave. Restoration to the employee's position prior to the leave is not required for employers with fewer than 25 employees if certain conditions are met.

Third, the Paid Sick Days for Public Health Emergencies and Personal and Family Care Act, Division F of the Act, requires employers to allow employees to gradually accrue seven days of paid sick leave beginning on the date of hire and to provide an additional 14 days of sick time available immediately in the event of a public health emergency, including the current coronavirus pandemic. The sick time may be used for any of seven outlined reasons, including absences resulting from closure of the place of employment by order of a federal or state public official with jurisdiction or at the employer's discretion due to a public health emergency; when a public official has determined the employee's presence would jeopardize the health of others regardless of whether the employee has actually contracted a communicable disease; and to care for a child, parent, spouse, domestic partner or any individual related by blood or affinity whose close association is the equivalent of a family relationship – who is a child if the school or place of care has been closed by order or at the discretion of the school or place of care due to a public health emergency or because a public official has determined that the presence of the person receiving care may jeopardize the health of others in the community because of the person's exposure to a communicable disease regardless of whether the person has actually contracted the communicable disease. This paid sick time requirement is in addition to any paid leave the employer already offers its employees. The paid time is available to employees regardless of how long the employee is employed, and the employee cannot be required to use their employer-provided paid leave before taking paid sick time under this Act. The paid sick time earned shall carry over from one year to the next. If an employee is separated from employment but is rehired within 12 months after the separation, the employer shall reinstate the employee's previously earned paid sick time under this section.

There are a number of other provisions of the Act, including, but not limited to, a provision that provides $15 million for the IRS to implement tax credits for the paid sick and FMLA leave, which are potentially refundable; a provision that provides small businesses (fewer than 50 employees) reimbursements for the 14 days of additional paid sick leave during a public health emergency; and a provision that provides funding to stabilize the unemployment insurance process in light of an anticipated increase in unemployment due to those who may become unemployed as a result of the current coronavirus pandemic. In addition, certain provisions also apply to employees who work under a multi-employer collective agreement and who pay into a multi-employer plan.

Employers should monitor these changes and contact counsel to assist them with understanding and complying with the Families First Coronavirus Response Act, reviewing current policies and procedures to ensure compliance and identify necessary changes, and addressing any other questions or concerns.

Baker Donelson continues to monitor the Families First Coronavirus Response Act and will share more information as it becomes available. If you have any questions regarding the Act or the impact of the coronavirus (COVID-19) on your organization, please contact any member of Baker Donelson's Labor & Employment Group. Also, please visit the Coronavirus (COVID-19): What you Need to Know information page on our website.

1 Importantly, this bill has NOT passed the Senate. Reportedly, negotiations continue due to a problem with the current version of the bill that may require "technical correction." There could be additional changes to the current text during the Senate's consideration before full passage and enactment. Therefore, this article is based on the version as passed by the House on March 14, 2020.

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