To follow-up with our initial blast announcing the Senate’s approval of the Coronavirus relief bill we have compiled additional details that are available to date. Since we all know that developments related to the Coronavirus are changing daily, if not hourly, we will continue to share information as it becomes available.
In the meantime please access the ThinkHR platform which provides excellent resources on legislation, ways to communicate with employees and more. This is a direct link to ThinkHR’s Coronavirus specific resources. Please note you must be logged in to access the information.
As of March 19, 2020, the Congress passed and the President signed two laws to address the current coronavirus crisis:
- P.L 116-123, The Coronavirus Preparedness and Response Supplemental Appropriations Act, signed on March 6 with a price tag of $8.3 billion, and
- P.L.116-___ (currently known by its House bill number H.R. 6201), The Families First Coronavirus Response Act (the “FFCRA”), signed on March 18, with an estimated cost of $183.8 billion.https://www.americanactionforum.org/research/estimating-the-cost-of-the-families-first-coronavirus-response-act/.
The House has begun work on yet a third bill, expected to cost about $1 trillion, which is expected to include direct payments to individuals and targeted relief for businesses.
The FFCRA comprises four components: private-sector mandates for providing certain employees with paid sick leave, expanding unemployment-insurance benefits, increasing federal Medicaid funding, and providing additional nutritional assistance. Information about the earlier act, P.L. 116-123, is included at the end of this piece.
1. Private Sector Mandates
- Public Health Emergency Leave. Covered employees may take up to 12 weeks of paid leave if they can’t work or telework because they must care for a minor child whose school or daycare is closed due to an officially declared coronavirus emergency. (The limitation to employees whose school or daycare had closed was added to the final version of the law.) Covered employees are those working for employers with under 500 employees and government employees who have been employed for 30 days. The Secretary of Labor is authorized to exempt employers with under 50 employees, if the bill’s provision would jeopardize the viability of the business.
Health care providers or emergency responders may exclude their employees from this provision.
The first 10 days of leave is unpaid and he employer may require that the employee utilize available paid time off; the remainder up to 12 weeks is compensated at not less than 2/3rds of the employee’s pay up to $200 per day or $10,000 in the aggregate.
For variable employees, the employer is to use the average weekly hours for the preceding six months to determine the paid portion of this leave. If he variable employee had not worked a full six months, the employer is to determine what the “reasonable expectation” of that six-month average would have been.
Generally at the end of normal FMLA leave, the employer is expected to return the employee to the same or an equivalent position. A limited carveout to that requirement is created for employers with fewer than 25 employees. This requirement is effective from April 2 through December 31, 2020.
- Emergency Paid Sick Leave. The law requires certain employers to provide two weeks of paid sick leave, if the employee is unable to work (or telework) for one or more of the following coronavirus reasons
- Government-ordered quarantine or isolation related to the virus
- An employee’s health-care provider advises them to self-quarantine
- The employee is caring for another who is subject to the above.
- The employee is experiencing coronavirus symptoms and is seeking medical advice.
- The employee is caring for a child whose school or daycare is closed or unavailable due to coronavirus precautions
- The employee is experiencing conditions similar to the coronavirus as specified by the HHS Department.
This provision covers private-sector employers with fewer than 500 employees, government employers, and all non-private employers with any employees. The law applies to all employees of these employers regardless of length of employment. The Secretary of Labor may exempt employers with under 50 employees, if the requirements would jeopardize the viability of the business. Again, health care providers and emergency responders may exclude their employees from this provision.
The amount of paid sick leave employers must make available is 80 hours for full-time employees, the average number of hours over a two-week period for part-time employees, and for variable employees should be based on the average daily work hours over the preceding six months.
Employers may require employees to comply with reasonable notice procedures if they take this paid sick leave, and need not pay sick pay for the full 10 days, if it is not supported by the causes noted above. There is an employer notice-posting requirement.
The required paid sick leave need not exceed $511 per day or $5,110 in the aggregate. The sick leave paid those employees taking leave to care for another need not exceed $200 per day, or $2,000 in the aggregate. An employer may not require that an employee take other types of paid time off before taking this sick leave. Employers may not retaliate against employees taking this sick leave. Employers failing to meet the obligations of this provision are subject to FLSA civil penalties.
This requirement is also effective from April 2 through December 31, 2020.
- Employer Tax Credits.
The law provides for several tax credits to help offset the cost of these provisions on employers.
- Payroll Tax Credits
The law provides for refundable credits to be used against the employer portion of FICA taxes equal to 100% of the amounts paid by employers under the FFCRA for emergency leave and paid sick leave.
The credit is limited to the caps noted above increased by the amount of health plan coverage paid by the employer for the period of the employee’s FFCRA leave. However, employers may not receive these tax credits if they are already receiving a credit for paid family and medical leave under the 2017 tax act.
2. Additional Provisions of the FFCRA
- Coronavirus Testing. The law requires insurance carriers offering group or individual health coverage to provide coverage and not require cost sharing for coronavirus testing.
- Unemployment Insurance Expansion.
- The law authorizes Labor Secretary to make additional funds available to the states’ unemployment trust funds.
- Increased Medicaid funding
- The law provides states a temporary 6.2% increase in federal medical assistance percentages and requires Medicaid to offer coronavirus testing without cost sharing.
- Additional Nutritional Assistance
- The law provides additional assistance for the nutritional program to benefit pregnant women and mothers with young children who become unemployed as a result of the coronavirus. The Agriculture Secretary is authorized to make certain waivers.
- The law appropriates $400 million in funds for local food banks.
- The law authorizes the Agricultural Department approve state efforts to provide emergency Electronic Benefit Transfer food assistance.
- The law appropriates $250 million for food for home-bound, low-income seniors.
3. The Earlier Law
P.L 116-123 provided $8.3 billion, $3.1 billion of which is emergency funding for vaccine development, additional supplies (including masks and personal protective equipment). Also $950 million was set aside for state and local public health departments for additional workers, equipment and to improve data analytics. Finally, large discretionary funds were made available to the HHS Department.
- Text of FFCRA, https://www.congress.gov/bill/116th-congress/house-bill/6201/text
- C. Saperstein, A Ghosh, Z. Kessler, “COVID-19: Analysis of H.R. 6201, the Families First Coronavirus Response Act: What Organizations Need to Know about Congress’s Major Coronavirus Response Bill”, Pillsbury Law Firm (3/18/2020), https://www.pillsburylaw.com/en/news-and-insights/hr-6201-families-first-coronavirus-response-act.html
- E. Moeller, M. Oresman, “COVID-19 Emergency Funding and Tax Relief: Assessing Federal Opportunities”, Pillsbury Law Firm (3/11,2020) https://www.pillsburylaw.com/en/news-and-insights/covid-19-emergency-funding-and-tax-relief-assessing-federal-opportunities.html
- F. Alvarez, S. Giger, R. Greenberg, P. Pryor, J Bologna, T. Burke, “The New Employer Obligations under the Slightly Revised Families First Coronavirus Act (H.R. 6201)” JacksonLewis (3/18/2020),https://www.jacksonlewis.com/publication/new-employer-obligations-under-slightly-revised-families-first-coronavirus-act-hr-6201
- I. Soto, T. O’Neill Hayes, “Estimating the Cost of the Families First Coronavirus Response Act”, American Action Forum (3/17/2020), https://www.americanactionforum.org/research/estimating-the-cost-of-the-families-first-coronavirus-response-act/#ixzz6H9N07j2Y
- J. Radke, P. Reilly, S. Gangemi, M. Curtin, “ ‘Families First Coronavirus Relief Act’ Expands Family and Medical Leave Act and Mandates Paid Sick Leave”, Murtha Cullina (3/19/2020),https://www.murthaemploymentlaw.com/2020/03/families-first-coronavirus-relief-act-expands-family-and-medical-leave-act-and-mandates-paid-sick-leave/.