Employer Update - Federal Government Expected to Pass Emergency COVID-19 Legislation to Provide Paid Leave to U.S. Employees

This past weekend the House of Representatives overwhelmingly passed the Emergency Families First Coronavirus Response Act (H.R. 6201). The bill now heads to the Senate. The Trump administration has indicated its support for the legislation, with an interest in signing it into law on Tuesday, March 17, if passed by the Senate.

If passed as currently written, the bill has several requirements relating to paid leave for employees. Importantly, the leave provisions would only apply to employers with less than 500 employees. Here is a summary of the most pertinent provisions that would apply to these employers.

1. Emergency Family and Medical Leave Expansion Act

Under the House bill, employees will have the right to take up to 12 weeks of job-protected leave under the FMLA. The employee will need to be on the employer's payroll for 30 days to qualify (as opposed to 12 months, which the FMLA requires).

The first two weeks of leave may be unpaid, or an employee may choose to use accrued vacation, personal, or other sick leave. However, an employer may not require the employee to do so. After the two weeks of unpaid leave, an employer would pay the remaining FMLA leave (up to 10 weeks) at a rate of no less than two-thirds (2/3) of the employee's usual rate of pay.

The emergency FMLA leave may be used so an employee can:

• Adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of COVID-19;
• Care for an at-risk family member who is adhering to a requirement or recommendation to quarantine due to exposure to or symptoms of COVID-19; or
• Care for a child, if the child's school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19.

The law will go into effect 15 days after it is enacted, and expire on December 31, 2020.

2. Emergency Paid Sick Leave Act

Separate from the emergency FMLA, under the House bill, employers will be required to provide employees with two weeks of paid sick leave, at their regular rate of pay, if they need to be quarantined or seek a diagnosis or preventative care for COVID-19. This bill applies to all employees, regardless of how long they have worked for their employer. In addition to providing two weeks of paid leave to all employees, the bill would provide pay for the first two unpaid weeks of leave that eligible employees have under the Emergency FMLA Expansion Act (discussed above) before being entitled to pay.

Full-time employees are entitled to 80 hours of paid leave, while part-time employees are entitled to the average number of hours that they work in a typical two-week period.

Further, the bill provides that:

• This two weeks of paid leave may also be taken to care for (1) a family member who is quarantined or seeking a diagnosis or preventative care for COVID-19, or (2) to care for a child whose school has closed or if a childcare provider is unavailable, due to COVID-19, but in these instances, the required pay is two-thirds (2/3) of the employee's regular rate of pay, not full pay;
• Employers post a notice informing employees of their right to paid leave; and  
• Employers comply with existing state or local paid leave entitlements. (See discussion below regarding Minneapolis, St. Paul, and Duluth's Sick and Safe Time Leave Ordinances).

This paid sick leave will go into effect 15 days after enactment, and will expire on December 31, 2020.

3. Emergency Unemployment Insurance Stabilization and Access Act

Another provision of the House bill would provide $1 billion in 2020 for emergency grants to states for processing and paying unemployment benefits. States would have immediate access to $500 million for administrative costs if they meet certain requirements, including requiring employers to provide employees notification of the availability of unemployment compensation at the time of an employee's separation.

4. Tax Credits for Emergency Paid Sick Leave and Family and Medical Leave

Finally, the House bill provides refundable tax credits for employers who provide paid emergency sick leave or paid FMLA to employees:  

• A refundable tax credit equal to 100 percent of qualified paid sick leave under the Emergency Paid Sick Leave Act.
• A tax credit equal to 100% of qualified family leave paid under the Emergency FMLA Expansion Act. However, the amount of family leave paid per employee is capped at $200 per day and $10,000 in total.

MINNESOTA LAWS TO KEEP IN MIND IN THE MIDST OF THE COVID-19 PANDEMIC

1. Minneapolis, St. Paul, and Duluth Sick and Safe Leave

Employees covered by the Minneapolis, St. Paul, and Duluth Sick and Safe Time Ordinances will be able to use their sick time for certain COVID-19-related absences. These ordinances cover absences caused by emergency closure of schools or place of care, or the need to care for a family member whose school or place of care has been closed by order of a public official to limit exposure to a public health emergency. The official order issued by Governor Walz on March 15 to close the schools will likely be considered the type of emergency closure triggering the obligation to pay sick leave in these cities.

2. Minnesota Law on the Isolation and Quarantine of Persons

Minn. Stat. § 144.4196 provides protection to employees in the event they are required to be isolated or quarantined. Under this law, an employer may not discharge, discipline, threaten, or penalize a qualified employee, or otherwise discriminate against the employee, because the employee has been in isolation or quarantine. Employers are cautioned not to treat employees who have been quarantined differently than other employees.

On February 19, 2020, new legislation was introduced in the Minnesota House relating to employees who are isolated or quarantined. The new legislation, if passed, would apply when a quarantine has been ordered by the commissioner of health, state, or federal government. If a quarantine is issued, an employee would need to be allowed to work from home, following an interactive process with the employer and if the arrangements are reasonable. This bill is not final, and has not moved forward since its introduction in February.

We Can Help

Please contact Maslon's Labor & Employment Group if you have questions or would like assistance reviewing your leave policies.