Earlier today, the Senate passed the Families First Coronavirus Response Act (HR 6201) by an overwhelming margin of 90-8. The package, also known as “phase two,” now heads to President Trump’s desk.

It’s important to point out that the legislation has been amended to modify / scale back key aspects of the FMLA and sick leave provisions. The revised bill text now provides as follows:

FMLA

Under the original bill, employers (with fewer than 500 EEs) were to provide up to 12 weeks of FMLA leave to an eligible employee for “a qualifying need related to a public health emergency.”  This “qualifying need” has now been limited to instances where an employee is unable to work – or telework – due to the need to care for a child if the child’s school or place of child care has been closed or the child care provider is unavailable, due to a public health emergency.

The original bill also provided for an initial 14 days of unpaid leave; however, in the amended version this number is reduced to 10 days.  As before, this first segment days of can be unpaid…and an employee can opt to substitute accrued vacation, personal, or sick leave.

The remaining FMLA leave must be paid at two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work. Notably though, this new iteration limits the amount of required pay for leave to no more than $200 per day and $10,000 total.

Sick Leave

Under the new language, employers (with fewer than 500 EEs) would be required to provide paid sick time to an employee who is unable to work – or telework – because:

1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. the employee is caring for an individual subject to quarantine or isolation;
5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The amendment limits an employer’s requirement of paid leave to $511 per day ($5,110 total) where leave is taken for reasons 1, 2, and 3 noted above (generally, an employee’s own illness or quarantine); and $200 per day ($2,000 total) where leave is taken for reasons 4, 5, or 6 (care for others or school closures).

Effective Date

The bill would take effect 15 days after enactment, and sunset on December 31, 2020.

Note: Small businesses (fewer than 50 EEs) are exempt if the required leave would jeopardize the viability of their business.