In the early hours of Saturday, March 14, 2020, the United States House of Representatives passed the Families First Coronavirus Response Act (FFCRA), which is designed to expand relief in response to the COVID-19 outbreak, through access to free testing, enhancing food assistance, increasing Medicaid funding, and providing paid sick leave and unemployment benefits to workers. On Monday evening, March 16, the House passed amendments to the FFCRA before sending it to the Senate for consideration.

Read below for updates on the amendments that affect emergency paid sick leave, new leave under the FMLA for a public health emergency, and health care.

The amendments do not change the fact only employers with 500 or fewer employees are subject to the emergency sick leave and FMLA leave for a public health emergency. The amendments did not address whether limited liability companies and subsidiaries may aggregate all employees to reach the threshold of 500 employees.

Employers will be looking for implementing guidance from the Department of Labor and the Internal Revenue Service, which may include specific instruction on whether related entities can aggregate employees to reach the 500-employee threshold.

Emergency Paid Sick Leave

If enacted, the FFCRA would be the first federal law requiring private employers to provide paid sick leave to employees. However, not all private employers are covered. It only applies to private employers with fewer than 500 employees, although it applies to public agencies with at least one employee. Covered employers must give emergency paid sick time to any employee, regardless of the length of employment, for a qualifying emergency related to the coronavirus.

Full-time employees would receive 80 hours of emergency paid sick leave and part-time employees would receive a proportionately similar amount, based on the average number of hours they work in a two-week period. The leave would not carry over from one year to the next. The amendments removed the clause stating this emergency sick leave would be in addition to any other existing paid leave a covered employer provided prior to the passage of the law and no longer states the employer may not change its existing paid leave to avoid paying the additional emergency leave.

The amended bill still prohibits the employer from requiring an employee to use “other paid leave provided by the employer” before using emergency sick leave and creates civil penalties for taking adverse action/retaliating against an employee who uses emergency sick leave pay or complains about a violation. As amended, the bill appears to allow employers who already provide sick leave covering COVID-19 absences described in the bill to apply that existing sick leave to fulfill this mandate. This is a welcome change for proactive employers who have already adopted COVID-19 sick leave policies that are equal to, or more generous than, the House bill. [UPDATE] On March 24, 2020, the Department of Labor (“DOL”) issued guidance clarifying that the FFCRA requires employers to provide additional paid sick leave to any paid leave already provided. Under the DOL guidance, employers who already provided sick leave covering COVID-19 absences, prior to the Act going into effect, cannot apply that leave towards the entitlement.

The amendments also tighten the terms under which an employee qualifies for emergency paid sick leave by specifying the employee must be unable to work or telework due to a need for leave 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 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 his or her  son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or
5. 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.

The amendments adopt the existing, traditional FMLA definitions of “health care provider” and “son or daughter” for emergency paid sick leave and specify the maximum amount of pay during the leave will not exceed $511 per day ($5,110 aggregate) when sick leave is used for reasons (a)-(c) and will not exceed $200 per day ($2,000 in the aggregate) when used for reasons (d) or (e). The amendments still prohibit the employer from requiring the employee to search for/find a replacement during the time the employee is using emergency paid sick leave.

The amendments still allow employers to exclude health care providers and emergency responders from this benefit and add a new provision expressly stating the secretary of labor has the authority to issue regulations allowing the employer of health care providers and emergency responders to opt out of the benefit and exempt small businesses with fewer than 50 employees from the requirement of paying for sick leave if this would jeopardize the viability of the business as a going concern.

New Category of FMLA for Public Health Emergency

If signed into law, the FFCRA contains a provision that expands the FMLA to allow coverage for a new category: leave for a “qualifying need related to a public health emergency” with respect to COVID-19. This leave would only be available during the window of time beginning 15 days after the bill is enacted and ending on Dec. 31, 2020. 

Unlike other categories of leave under the FMLA that generally apply to employers with 50 or more employees, it applies to private employers with fewer than 500 employees, with exemptions for employers that are health care providers or emergency responders, and public agencies.  Exemptions may also be sought by employers with fewer than 50 employees whose economic viability would be jeopardized by complying with the new category of leave, under criteria that would be determined by the secretary of labor.

Unlike other categories of leave under the FMLA, public health emergency leave would be available to any employee who has been employed for 30 calendar days.

The amendments significantly narrow the original bill’s definition of a “qualifying need related to a public health emergency” by specifying this term “means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter of such employee if the school or place of care has been closed or the child care provider of such son or daughter is unavailable due to a public health emergency.” “Public health emergency” has been defined as “an emergency with respect to COVID-19 declared by a federal, state or local authority.”

The amendments now specify the initial 10 days (rather than 14 days) of public health emergency FMLA leave are unpaid, unless an employee voluntarily elects to use existing accrued paid vacation leave, personal leave, or medical or sick leave to cover the unpaid leave; the bill specifically prohibits an employer from requiring an employee to use existing paid leave during this time period. However, “emergency paid sick leave” created elsewhere in the bill would apply to this initial period. Unlike any other type of FMLA leave, the remaining period of qualifying leave for a public health emergency is paid, up to the full 12 weeks of leave, at a rate of pay that is “at least two-thirds of the regular rate” the employee would have earned under a normal work schedule.

The bill contemplates that the employer will return the employee to the same position at the conclusion of the leave for public health emergency, as with other types of FMLA leave. However, if an employer is unable to immediately reinstate the employee to the same or equivalent position because no such positions exist, the employer must make “reasonable efforts” to contact and reinstate the employee during the year following the conclusion of the leave period. 

The amendments specifically include a provision stating employers of health care providers and emergency responders may elect to exclude those employees from FMLA leave for a public health emergency.

The revised FFCRA also includes the following amendments to the health care-related sections.

Waivers of Requirements for Commercial and Medicare Payment of Telehealth Services

Among other technical changes, the revised FFCRA clarifies existing copays, and prior authorization requirements are to be waived by group health plans and commercial plans for both in-person visits and telehealth visits related to COVID-19 testing-related services. Additionally, Medicare Part B and Medicare Advantage plans are not to impose any prior authorization requirements or cost shares for any online digital evaluation and management services related to COVID-19 testing and related services. These changes are to ensure individuals can receive COVID-19 testing and related services through telehealth modalities.

Changes to Emergency FMAP Increase Conditions

The revised FFCRA provides an additional condition on state Medicaid agencies that receive a temporary increase of the states’ federal medical assistance percentage (FMAP) to provide coverage of COVID-19 testing for the duration of the public health emergency for COVID-19.  To receive the increased FMAP, the state Medicaid agency must allow beneficiaries to be enrolled in the state Medicaid plan until the end of the State of Emergency and cannot remove the beneficiary’s eligibility, even if the enrollee no longer qualifies for Medicaid due to an increased income level.

If you have any questions about these issues, please contact your Dinsmore attorney.