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03.16.2020 | Legal Advisory

On March 14, the U.S. House of Representatives passed the “Families First Coronavirus Response Act” by a vote of 363-40. The Bill now moves to the Senate and then, if passed, for signature by President Trump. 

The Bill as now drafted would have several impacts on most private employers that employ less than 500 employees. Two of the Bill’s more significant provisions are summarized below:

1. Paid FMLA

• Employees of private employers with fewer than 500 employees will have the right to take up to twelve (12) weeks of job-protected leave under the FMLA for coronavirus-related reasons. Employees must have been in the employer’s employment for 30 days to be eligible for such leave.
• An employee may use the leave to: (i) respond to a requirement or recommendation of quarantine by a public official or health care provider if the employee is unable to perform the essential functions of his or her job while quarantined; (ii) care for family members who are responding to a requirement or recommendation to quarantine; or (iii) care for the employee’s child when the child’s school or place of care has been closed or is unavailable as a result of coronavirus-related reasons.
• The first two weeks of leave may be unpaid. The employee may at his or her discretion use accrued paid personal, vacation, or sick time during those first two weeks of leave.
• For any leave in excess of the initial two-week period that are taken for the above-referenced coronavirus-related reasons, employers must pay wages to the employee at a rate of no less than two-thirds of the employee’s regular rate of pay.
• The Secretary of Labor may issue regulations that exempt health care providers and emergency responders from the law, and certain businesses with less than 50 employees.
• Leave is job-protected in the same manner as FMLA leaves offer job protection. An exception would apply for employers of less than 25 employees if the employer has eliminated an employee’s position because of the coronavirus emergency and the employer makes reasonable efforts to restore the employee’s position or notifies the impacted employee if an equivalent position becomes available at a later date.

2. Paid Sick Leave

• Private employers with fewer than 500 employees must provide employees with two weeks of paid sick leave for the following coronavirus-related reasons: (i) to self-isolate after a diagnosis of coronavirus; (ii) to seek a diagnosis or care for the symptoms of coronavirus; (iii) to comply with the recommendation of a public official or health care provider to self-isolate; (iv) to care for a family member who is self-isolating because of the coronavirus; or (v) to care for a child whose school or place of care is closed or unavailable due to the coronavirus.
• An employee taking sick leave to care for his or her own well-being or to self-isolate must be paid his or her regular rate of pay while on paid sick leave. An employee taking sick leave to care for a family member, or because a child’s school or place of child care has been closed or is unavailable due to the coronavirus, is entitled to at least two-thirds of the employee’s regular rate of pay while on sick leave.
• Paid sick leave will be available to employees regardless of length of service with an employer.

In the case of both the FMLA Leave and Paid Sick Leave, the cost of wages paid is borne by the employer, but will be reimbursed, subject to some limitations, by the federal government through a tax credit.

As noted, the House Bill is expected to be considered by the Senate this week. We will continue to monitor this legislation, and report in more detail on any new law enacted. 

This advisory was prepared by Liam O’Connell, co-managing partner of Nutter and chair of the firm’s Labor, Employment and Benefits practice group. For more information, please contact Liam or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.