HR 6201: What Public Entity Employers Need to Know About Federal COVID-19 Legislation

03.19.2020

On March 14, 2020, the U.S. House of Representatives passed the “Families First Coronavirus Response Act” (HR 6201), which provides relief to employees impacted by the current COVID-19 (Coronavirus) pandemic.  On March 18, 2020, the U.S. Senate passed the bill and presented it to President, who signed it later that same day.  HR 6201 becomes effective no later than April 2, 2020, which is 15 days after the President signed the bill.

Important!  The final version of the bill differs from original drafts in significant ways; therefore, be sure to read this Alert closely and in its entirety.

Here’s what you need to know:

Emergency Family Medical Leave Act (FMLA) Expansion

HR 6201 did not alter the application of the FMLA as it pertains to this emergency expansion, with the exception of the amount of time that an employee must work for the employer before qualifying.  Overall, HR 6201 applies to public entities in the same way that the FMLA currently applies.^[1]

HR 6201 provides for up to 12 weeks of paid FMLA leave for employees who have worked for the employer for at least 30 calendar days.  However, employers may exclude employees who are health care providers or emergency responders from application of this expansion.  However, HR 6201 does not define an “emergency responder.”

If an employee has worked the requisite amount of time, then he/she qualifies for leave only when an employee is unable to work (or telework) because the employee must care for a minor child whose school or child care provider is closed due to COVID-19.  Under these circumstances, the first 10 days may be unpaid.  Employees may be permitted to use accrued paid time off (sick leave, vacation, etc.) during the first 10 days of leave, but may not be required to do so.

Earlier versions of the bill made leave available for many more purposes.  It is important to note that the signed bill only provides paid leave for school/child care closures.  Employees continue to be eligible for unpaid FMLA/CFRA leave according to the provisions of those statutes.

After the first 10 days for which the employee takes leave, employees must be paid 2/3rds of their regular rate of pay for each day of leave taken, based on the number of hours the employee would otherwise be regularly scheduled to work.  Payment is capped at $200 per day and an aggregate of $10,000. Private employers will receive a payroll tax credit for paid leave provided to employees.  HR 6201 does not extend the payroll tax credit for the Emergency Family and Medical Leave Expansion to public entities.  However, there is pending litigation that may address this issue for public entities.  We will continue to update you regarding this issue as more information becomes available.

As with all FMLA leave, employees are entitled to restoration to their position upon conclusion of the leave. However, there is a limited exception to this provision for employers with fewer than 25 employees, if certain conditions are satisfied.

Public Health Emergency Paid Sick Leave

HR 6201 also provides for Emergency Paid Sick Leave.  This portion of HR 6201 defines a “covered employer” as any person engaged in commerce or in any industry or activity affecting commerce, including a public agency that employs 1 or more employees.  Moreover, HR 6201 specifies that a covered employer includes any public agency as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).

Full-time employees must receive 80 hours of Emergency Paid Sick Leave.  Part-time employees must receive a pro-rated amount equal to the number of hours the employee works, on average, over a two-week period.  All employees are immediately eligible for Emergency Paid Sick Leave; there is no 30-day requirement.  Employers may exclude employees who are health care providers or emergency responders from application of this provision.  However, HR 6201 again does not define an “emergency responder.”

Emergency Paid Sick Leave may be used in connection with specific circumstances related to COVID-19:

1. The employee is subject to a federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2), above.
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter is closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

HR 6201 provides that no certification or other documentation may be required in order to use Emergency Paid Sick Leave.  Additionally, employees may not be required to utilize other accrued paid time off before an employer provides Emergency Paid Sick Leave.

The legislation provides for two formulas for compensation:

1. Employers must compensate employees for Emergency Paid Sick Leave at the greater of (a) their regular rate of pay, or (b) the applicable minimum wage, for the uses described in (1) – (3), above. In these cases, payment is capped at $511 per day and an aggregate of $5,110.
2. Employers must compensate employees for Emergency Paid Sick Leave at the greater of (a) 2/3 their regular rate of pay, or (b) 2/3 the applicable minimum wage, for the uses described in (4) – (6), above. In these cases, payment is capped at $200 per day and an aggregate of $2,000.

Furthermore, private employers will receive a payroll tax credit for Emergency Paid Sick Leave provided to employees.  HR 6201 does not extend the payroll tax credit for the Emergency Paid Sick Leave or the Emergency Family and Medical Leave Expansion to public entities.  However, there is pending litigation that may address this issue for public entities.  We will continue to update you regarding this issue as more information becomes available.

Finally, employers will be required to post a notice informing employees of their rights to leave.  The federal Department of Labor is required to prepare a model notice by March 25, 2020, within seven (7) days of the bill’s passage.

We will provide additional information regarding HR 6201 and its implementation as more information becomes available.

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^[1] The FMLA covers all public agency employers and public and private elementary and secondary schools regardless of the number of employees the agency employs.  However, not all public employees are entitled to FMLA leave.  The same definition of “eligible employee” applies to public and private employees.  Thus, the relaxed “covered employer” definition for public agencies does not make all public employees eligible for leave benefits.  Specifically, the employee must work at a worksite where 50 or more employees work within 75 miles of the worksite.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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