Publications

03.19.2020

On Monday, March 16, 2020 the Employment, Labor, and Benefits Department at Koley Jessen published an article regarding the Families First Coronavirus Response Act (“HR 6201”), the proposed federal legislation requiring additional leave under the Family and Medical Leave Act (“FMLA”) and paid sick leave. Since that article was published, several changes were made to HR 6201 and it was signed into law. Accordingly, Covered Employers (those with fewer than 500 employees) will be responsible for providing employees additional FMLA leave and paid sick leave beginning April 2, 2020.

FMLA Leave

As previously discussed, Covered Employers must provide employees with 12 weeks of job-protected FMLA leave for a “qualifying need related to a public health emergency.” The first two weeks may be unpaid, but thereafter must be paid at 2/3rds the employee’s regular rate of pay. While an earlier draft of HR 6201 initially included several qualifying reasons for taking leave related to COVID-19 (“Coronavirus”), the list of qualifying reasons has since been revised to only include an employee needing leave from work (or telework) to care for their child, who is under 18, if the child’s school or place of care has been closed. Additionally, a cap has been placed on the amount of paid FMLA leave an employer must offer to an employee. Under HR 6201, an employee’s paid FMLA leave cannot exceed $200 per day and $10,000 in the aggregate.

Notably, HR 6201 contains an exception for employers of health care providers and emergency responders. Employers of health care providers or emergency responders may elect to exclude such employees from the application of the FMLA provisions of HR 6201.

Paid Sick Leave

The Paid Sick Leave portion of HR 6201 largely remained unchanged throughout the legislative process. Covered employers must provide employees with paid sick time if the employee is unable to work (or telework) because the employee is subject to a quarantine or isolation order, seeking medical attention in the event the employee is experiencing Coronavirus symptoms, caring for a family member who is self-quarantining, or caring for a child under 18 if the child’s school or place of care has been closed. It is important to note the employee’s rate of pay differs depending on the reason the employee is taking paid sick leave. If the employee is taking paid sick leave because they are self-quarantining or seeking medical attention, the employee must be compensated at their regular rate of pay. However, if the employee is taking paid sick leave to care for a family member who is self-quarantining or a child whose school or place of care has been closed, the employee only needs to be compensated at a rate equal to 2/3rds of their regular rate of pay. There is also a cap on Paid Sick Leave. If an employee is taking paid sick leave because they are self-quarantining or seeking medical attention an employee’s paid sick leave cannot exceed $511 per day and $5,110 in the aggregate. If an employee is taking paid sick leave to care for a family member who is self-quarantining or a child whose school or place of care has been closed, the employee’s paid sick leave cannot exceed $200 per day and $2,000 in the aggregate.

The Secretary of Labor has the authority to issue regulations to exclude certain health care providers and emergency responders from the applicability of the Paid Sick Leave provisions of HR 6201. However, until such regulations are issued, health care providers and emergency responders remain subject to the Paid Sick Leave provisions if employed by an employer with fewer than 500 employees.

FAQ Q&A

We have also prepared a brief Q&A to address employers’ frequently asked questions regarding HR 6201 and other related employment matters. We also encourage you to refer to our previously issued Coronavirus Q&A published on March 11, 2020.

• Q: If an employer already offers PTO and/or paid sick leave, does the employer also have to offer additional paid sick leave under HR 6201?
  • A: Yes. All employers with fewer than 500 employees must offer these FMLA and Paid Sick Leave benefits regardless if PTO, sick leave, or other leave options are available.

• Q: Can an employer require its employees to first use or exhaust all PTO before using Paid Sick Leave?
  • A: No. Employers are prohibited from requiring employees to use other paid leave provided by the employer before the employee uses Paid Sick Leave provided by HR 6201.

• Q: How does this FMLA or Paid Sick Leave law apply to those employees already allowed to work from home?
  • A: If an employee, who is already working from home, tells their employer that they need leave because their child is home from school and needs cared for/looked after (which will prevent them from working/teleworking), an employer will need to allow the employee to take FMLA leave.  Employers should discuss this issue with employees on a case-by-case basis – just because an employee’s kids are home does not necessarily mean that the employee will need FMLA leave.

• Q: What if both spouses work for the same employer? Are they both entitled to FMLA and/or Paid Sick Leave?
  • A: Under both the FMLA and Paid Sick Leave provisions of HR 6201, each spouse is entitled to the full amount of leave allowed if they can each demonstrate they have a qualifying reason for the leave.  

• Q: If the employer is shutting down or furloughing employees during this time, will the employer still have to pay employees under this new law?
  • A: HR 6201 lists various reasons related to Coronavirus that make an employee eligible to take either FMLA Leave or Paid Sick Leave.  Each of these reasons is based upon the fact that an employee needs leave from work.  Although HR 6201 does not address this situation and there is little guidance at this time, our interpretation is that if an employee has been furloughed, the employee does not need leave from work, as they are not scheduled to be working at that time.  Therefore, the employer likely does not have to pay the employees under HR 6201’s FMLA Leave or Paid Sick Leave.

• Q: Can an employer take an employee’s temperature at work?
  • A: The EEOC recently released guidance on Coronavirus and the Americans with Disabilities Act. The EEOC stated that while generally, measuring an employee's body temperature is a medical examination, because the CDC and state/local health authorities have acknowledged community spread of Coronavirus and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with Coronavirus do not have a fever.
• Q: How much information can an employer request from an employee who calls in sick, in order to protect the rest of its workforce from Coronavirus exposure?
  • A: During a pandemic, ADA covered employers may ask such employee if they are experiencing symptoms of the pandemic virus (i.e., Coronavirus). For Coronavirus, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

• Q: Can employers prohibit an employee from traveling on the employee’s personal time?
  • A: Generally, employers have no means of prohibiting otherwise legal activity, such as an employee’s travel on the employee’s own time. Employers can recommend their employees not travel, absent emergent or necessary situations, but should be cautious in attempting to prohibit all personal travel by employees.

Koley Jessen is vigilantly following all Coronavirus updates. Employers should continue to contact Koley Jessen’s Employment, Labor, and Benefits Department with questions or concerns about Coronavirus’ impact on the workforce.