The Senate is about to consider passage of the “Families First Coronavirus Response Act,” which has already passed in the U.S. House as H.R. 6201. The link is here for everybody to see. But, if you don’t want to read all 110 pages of it right now, let me cut to the parts that I think affect employment law in the context of containment of this pandemic.
The Act protects larger employers.
This Act applies to employers with “fewer than 500 employees.” Act § 3102(b)(changing the language of the FMLA for this Act). So if you think large-scale employers are required to pay for leave due to COVID-19, make no mistake—this Act does not make them pay you anything. Of course, they can voluntarily pay you, but they would not be required to do so. If you are employed by a Walmart or a Target and decide to “socially distance” yourself, or, I don’t know, watch your children while schools are closed, you may go without pay for the time you are out.
Even if your employer is required to pay you under the Act, you need to be prepared to go 15 days (or more depending on if/when the Act passes) without payment.
The wage payment provisions of the Act do not take effect for 15 days after it is passed by Congress and signed off on by the President. Which, as of the time this blog was written, has not happened yet. Act § 3105. Thus, even if the Act were signed today and you are working for an employer with fewer than 500 employees, it could be 15 days from right now before you get paid for any time you take off to comply with the recommended self-isolation protocol.
Covered employers are required to provide two weeks of paid time off.
Assuming you work for a covered employer (an employer with fewer than 500 employees), you can get two weeks’ equivalent of time off. For example, if you are employed full-time, you can get a total of 80 hours of paid time off, while if you are employed on a part-time basis, you can get the average amount of hours’ worth of time to cover two weeks of shifts. Act § 5102(b)(2).
Employers cannot require you to find someone to cover your shift before using this special paid time off. Act. s. 5102(e). The leave is available immediately after the Act takes effect (15 days after it is signed off on). Act s. 5102(f)(1). Employers also cannot make you use other existing forms of paid time off you have accrued first. Act § 5102(f)(2). The leave time under the Act does not rollover from year-to-year. Act § 5102(b)(3).
Covered employers cannot fire you for using leave under the Act.
Finally, employers cannot retaliate against employees for taking leave under the Act or trying to get the employer to comply with the Act by filing a complaint/action or testifying in an action. Act. §§ 5104-5105. Covered employers need to seriously consider this aspect of the Act, as violations are treated as wage payment violations under the FLSA (meaning successful plaintiffs are very, very likely going to collect attorneys’ fees and costs in litigation).
To sum up:
For employees: Your employer may not be required to provide you paid leave under the Act. And, even if they are, they are not required to do so until the Act takes effect, which is 15 days after it is enacted. However, if you have vacation time, sick time, other paid time off, or can work from home, please consider using these options to protect our most vulnerable members of society.
For employers: First, evaluate whether you are covered by this Act. If so, be sure to post a notice of these rights no later than 7 days after the Act is enacted. Act s. 5103(b). The Department of Labor is supposed to be providing a notice for this purpose, so keep an eye on the DOL website. Second, carefully review the Act’s requirements as to paid time off and be sure to comply. If possible, provide a way for employees to work remotely. And, third, if you really want to stick out in the market as a top employer to work for, consider voluntarily paying employees for time off to bridge-the-gap. Good employees are worth keeping.
Overall: From an employment perspective, this Act does not do a whole lot to encourage employees to stay in their homes or protect employees who have no choice due to child care needs during these critical first few weeks. But, to be clear, there are positive aspects to the Act that I am not addressing here, such as increased unemployment compensation benefits (in Florida, we call these “reemployment assistance” benefits), subsidies for food under school lunch and EBT programs, and testing for COVID-19. The New York Times has published an article on these aspects and will likely publish more, which I encourage you to check out.
This Act, as it stands, is a good start. It may be amended or not passed by the Senate at all. But, whatever happens, I’m hoping it’s not too little, too late. Stay safe everyone!
Photo by Columbia University in the City of New York