House of Representatives Takes Steps to Provide Paid Leave to Employees Absent due to COVID-19; Senate Must Still Act

On March 13, the US House of Representatives passed the Families First Coronavirus Response Act, (the “Act”) to  provide for emergency paid sick and family and medical leave for some employees around the country.  Public agencies and employers with fewer than 500 employees are covered by the Act, and can apply for tax credits each quarter to recoup payments made under the Act.

Please note that the Act has not gone into effect yet and is not final.  The Senate must also pass the Act before it becomes effective, and the Senate is likely to make changes.  Subject to those changes, below is a summary of the important items for employers to know about the Act in its current state.

Emergency Family and Medical Leave

Employees are eligible for up to 12 weeks of paid family and medical leave under the Act if they have worked for an employer for at least 30 days, and are absent from work for one of the following reasons:

• To comply with a public official’s or health care provider’s order or recommendation that the employee’s physical presence on the job would jeopardize the health of others due to COVID-19;
• To care for a family member (which is defined more broadly than in the Family and Medical Leave Act) for the same reasons; or
• To care for the employee’s son or daughter (under 18 years of age) if:

o   The child’s school or place of care has been closed due to a declared public health emergency related to COVID-19 (this is currently the case in Oregon and Washington);

o   Child care providers are unavailable due to a declared public health emergency related to COVID-19; if the closure or unavailability of childcare is foreseeable, the employee must provide the employer with notice of leave as is practicable.

The first 14 days of emergency family and medical leave are unpaid; however, the employee may use any other available paid leave.  After 14 days, employers are required to pay employees at least 2/3 of their regular pay during the leave.  Employers with fewer than 50 employees may apply for a hardship exemption (the details of which are to be determined).

Emergency Paid Sick Leave

Emergency paid sick leave will be available for employees regardless of the employee’s tenure, in addition to any other paid leave to which an employee is entitled (such as paid sick leave in Oregon and Washington).  Full time employees will be eligible for up to 80 hours of paid sick leave at their regular rate of pay, and part-time employees are eligible for a prorated amount.  Employees are eligible if they:

• Are absent because of a diagnosis of or to seek medical care for symptoms of COVID-19;
• Must comply with a recommendation from a public official or health care provider that the employee’s physical presence on the job would jeopardize the health of others;
• Are caring for an ill family member for any of the foregoing reasons; or
• Are caring for a child whose school has been closed, or whose child care provider is unavailable, due to a public health emergency related to COVID-19 (as is currently the case in Oregon and Washington).

Employees must be paid their regular rate, except for time spent caring for an ill family member or a child whose school is closed or daycare is unavailable due to COVID-19, in which case only 2/3 of the regular rate must be paid.

Employers may require reasonable notice of an employee’s absence after the first time the employee receives emergency paid sick leave.

If enacted, the Act will expire on December 31, 2020.