Hunton Employment & Labor Perspectives

In the early morning hours of March 14, 2020, the U.S. House of Representatives passed a bill to address concerns related to the spread of COVID-19 (the “Bill”).  The Senate is expected to consider the Bill shortly, and according to media reports, the Bill has the Trump Administration’s support.  Our summary below highlights provisions of the Bill related to leave.  This summary provides information regarding how the bill stands currently, but language changes or substantive amendments may still occur.  We will continue to monitor the Bill as it progresses through the legislative process and update this post accordingly.

UPDATE:  Click here to read our update on revisions made to the Bill.

Note at the outset that, as the Bill stands now, the leave provisions pertain only to employers with fewer than 500 employees.

Paid Sick Time

The Bill establishes the Emergency Paid Sick Leave Act (the “Act”). The Act is effective not later than fifteen (15) days after the date of enactment and expires December 31, 2020. The Act applies to an employer that, in the context of private entities, employs fewer than 500 employees, and, in the context of public agencies or any non-private entity or individual, employs one (1) or more employees.

• Overview:
  • Paid sick time under the Act is available upon enactment regardless of how long an employee has been employed by an employer.
  • Full-time employees are entitled to eighty (80) hours of paid sick time.
  • Part-time employees are entitled to paid sick time equal to the number of hours the employees work, on average, over a two (2) week period.
  • Paid sick time shall not carry over from one year to the next.
  • Paid sick time shall cease beginning with the employee’s next scheduled shift immediately following the termination of the need for the paid sick leave.
  • If an employer already provides paid leave, paid sick time provided for by the Act is in addition to such paid leave and the employer may not change such paid leave on or after enactment of the Act to avoid providing both the previously provided paid leave and the paid sick leave provided by the Act.
• Paid sick time may be used for any of the following reasons:
  • For an employee to self-isolate due to a coronavirus diagnosis;
  • For an employee to obtain a medical diagnosis or care if the employee is experiencing symptoms;
  • To comply with recommendations or orders from a public official having jurisdiction or a healthcare provider because the employee’s physical presence would jeopardize the health of others due to the contraction of or exposure to COVID-19, or exhibition of COVID-19-like symptoms;
  • To care for a Family Member who has received a recommendation or order described immediately above;
  • For an employee to care for or assist a Family Member who is self-isolating because the Family Member has been diagnosed with or is experiencing symptoms of coronavirus;
  • To care for a child whose place of school or care has been closed or is unavailable due to coronavirus;
  • *A “Family Member” is a parent, spouse, or child of an employee, or a sibling, next of kin, or a grandparent/grandchild of an employee who is a) a pregnant woman, b) a senior citizen, or c) an individual with a disability.
• Calculation of paid sick time:
  • Calculation of rate of pay for paid sick time:
    • Paid sick time shall be not less than the greater of:
      • An employee’s regular rate of pay under the FLSA;
      • The minimum wage rate currently in effect under the FLSA;
      • The minimum wage rate in effect in the applicable state or locality (whichever is greater) in which the employee is employed.
    • For paid sick time used to care for Family Members, an employee’s required compensation is two-thirds (2/3) of the above described amount.
  • Calculation of hours worked for part-time employees:
    • For purposes of calculating the number of hours worked for part-time employees, an employer that is unable to determine with certainty the number of hours the employee would have worked absent Public Health Emergency Leave, shall calculate the employee’s leave as follows:
      • The average number of hours the employee was scheduled to work per-day over the six (6) month period ending on the date the employee takes Public Health Emergency Leave (including hours for which the employee took leave of any type);
      • If the employee did not work over such period, the reasonable expectation of the employee, at the time of hiring, as to the number of hours the employee would work per day shall be used.
    • Notice:
      • Employers shall post and keep posted a notice, to be prepared by the Secretary of Labor, describing the requirements of the Act.
      • After the first workday (or portion thereof) an employee receives paid sick time under the Act, an employer may require the employee to follow a reasonable notice procedure to continue receiving paid sick time.
    • Miscellaneous provisions related to paid sick time:
      • An employer may not require employees to find replacement employees before taking paid sick leave.
      • An employer may not require an employee to use other paid leave provided by the employer before using the paid sick leave.
      • Employers may not discharge, discipline, or discriminate against employees who take leave provided by the Act, or file a complaint, or institute, cause to be instituted, or participate in any proceeding under the Act.
      • Failure to abide by the provisions in the Act is considered a failure to pay minimum wages as provided by the FLSA, subjecting an employer to penalties provided for under the FLSA (and possibly penalties for willful violations of the FLSA).

Amendments to the FMLA (Public Health Emergency Leave)

The Bill’s amendments to the FMLA become effective not later than fifteen (15) days following enactment and expire December 31, 2020. The Bill amends the FMLA as follows:

• Employers must provide employees with up to twelve (12) weeks of paid leave for a coronavirus-related emergency declared by a Federal, State, or local authority (referred to herein as “Public Health Emergency Leave”), including leave:
  • To comply with recommendations or orders from a public official having jurisdiction or a healthcare provider because the employee’s physical presence would jeopardize the health of others due to the contraction of or exposure to COVID-19, or exhibition of COVID-19-like symptoms;
  • To care for a Family Member who has received a recommendation or order described immediately above;
  • To care for a son or daughter under eighteen (18) years of age if the son or daughter’s school or place of care has been closed (or is unavailable) due to a public health emergency.
• However, Public Health Emergency Leave need not be paid during the first fourteen (14) days for which an employee takes such leave (but the employee may choose to use accrued paid leave), but Public Health Emergency Leave must be paid for each day of leave the employee takes after the initial fourteen (14) days.
• Varied definitions:
  • “Eligible Employees” are those who have been employed by an employer for at least thirty (30) days.
  • An “Employer” is any person who employs fewer than 500 employees.
  • A “Parent” is a biological, foster, adoptive, or step-parent of an employee, a parent-in-law, parent of a domestic partner, or person in loco parentis to the employee.
  • A “Family Member” is a parent, spouse, or child (under age eighteen (18)) of an employee, or children of the employee over age eighteen (18), an employee’s next of kin, or the grandparent/grandchild of an employee who is a) a pregnant woman, b) a senior citizen, or c) an individual with a disability.
• Paid leave calculation:
  • Paid leave shall generally be calculated based on an amount not less than two-thirds (2/3) of an employee’s regular rate of pay under the FLSA and the number of hours an employee would otherwise be normally scheduled to work.
  • For purposes of calculating the number of hours worked, an employee whose employer is unable to determine with certainty the number of hours the employee would have worked absent Public Health Emergency Leave, the employer shall calculate the employee’s leave as follows:
    • The average number of hours the employee was scheduled to work per-day over the six (6) month period ending on the date the employee takes Public Health Emergency Leave (including hours for which the employee took leave of any type);
    • If the employee did not work over such period, the reasonable expectation of the employee, at the time of hiring, as to the number of hours the employee would work per day shall be used.
  • Miscellaneous provisions related to Public Health Emergency Leave:
    • Employees may elect (but employer’s cannot require) to substitute accrued paid leave for Public Health Emergency Leave.
    • Employees needing to take Public Health Emergency Leave must provide employers with notice as is practicable.
    • Employers employing fewer than twenty-five (25) employees are not required to restore an employee to their pre-Public Health Emergency Leave position if the position no longer exists because of economic or other conditions caused by the public health crisis, if the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held prior to commencing the leave.
      • Employers employing twenty-five (25) or more employees must restore employees taking Public Health Emergency Leave to their pre-leave or equivalent positions.

Tax Benefits

• Employers are eligible to receive certain tax benefits for the paid sick leave and paid family and medical leave benefits provided to employees.

Health Insurance Benefits

Insurance issuers offering group or individual health coverage shall not impose any cost sharing (including deductibles, copayments, and coinsurance), prior authorization, or other medical management requirements for:

• In vitro diagnostic products for the detection of SARS-CoV-2 and COVID-19 that are approved, cleared, or authorized by the FDA;
• Items and services furnished during healthcare provider office visits, urgent center visits, and emergency room visits for purposes related to the provision of or determination of whether in vitro diagnostic products are necessary.