Latest Proposed Coronavirus Relief Bill Would Significant Expand Employee Leave Benefits Under the Families First Coronavirus Response Act

On May 12, 2020, the U.S. House of Representatives introduced the Health and Economic Recovery Omnibus Emergency Solutions Act (“HEROES Act”), which, among other things, would significantly expand coverage and benefits available under the Families First Coronavirus Response Act (“FFCRA”). As we have discussed at length in numerous prior posts, the FFCRA provides for paid sick leave for certain coronavirus-related reasons, as well as leave under the Family and Medical Leave Act (“FMLA”) to care for a child whose school or care provider is closed or unavailable due to COVID-19 (“emergency FMLA” or “EFMLA”).

Under the current proposed bill, the HEROES Act would expand FFCRA coverage to employers of all sizes and across all industries without exemption. Presently, only employers with fewer than 500 employees are covered by the FFCRA paid leave requirements. The law also currently provides for exemptions for healthcare workers and first responders, as well as certain exceptions for employers with fewer than 50 employees.

The HEROES Act would also significantly expand the covered reasons for which employees may take paid leave under the FFCRA. Specifically, under the proposed bill, employees would be eligible to take up to 80 hours (or, for part-time employees, the equivalent of two weeks) of emergency paid sick leave and up to 12 weeks of emergency FMLA leave for any one or a combination of the following reasons:

Employers would still be able to utilize payroll tax credits to cover the cost of wages paid to employees under the emergency paid sick leave and emergency FMLA provisions up to the statutory maximum amounts (though, as noted below, the statutory caps for certain covered reasons for emergency paid sick leave, as well as for aggregate benefits under the EFMLA, would increase under the proposed bill).

Some other key highlights of the proposed HEROES Act as they relate to FFCRA include:

The HEROES Act would also make a temporary modification to the eligibility requirements for non-emergency FMLA leave (that is, FMLA leave taken for an employee’s own serious health condition, to care for a family member with a serious health condition, to care for a new child, or for certain military-related reasons). The proposed bill would temporarily (through December 31, 2022) suspend the minimum 1,250 work hour eligibility requirement, as well as reduce the 12 month service requirement to 90 days.

The proposed bill also includes certain provisions relating to employee safety. Notably, the bill would require OSHA to promptly issue an enforceable emergency temporary standard (“ETS”) relating to COVID-19 that would be applicable to all employers.  The ETS would have to, among other things, require employers to develop and implement infection control plans.  The bill would also requires OSHA to issue a permanent comprehensive infectious disease standard within two years.

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It remains to be seen whether the HEROES Act and its above changes will see the light of day, as Congressional Republicans have expressed significant disapproval for the bill as a whole and its approximately $3 trillion dollar price tag. We will continue to closely monitor developments on this bill and provide updates as they become available.

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National Law Review, Volumess X, Number 135