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House Sends Amended Coronavirus Response Act to Senate with Significantly Reduced Employee Paid Leave Protections – Vote Expected Today

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By Lauren Barghols Hanna

Phillips Murrah attorney Lauren Hanna

Lauren Barghols Hanna

Late last evening, the U.S. House of Representatives passed an amended version of the Families First Coronavirus Response Act, originally passed by the House on Saturday.  Although the amended bill was labeled as “technical corrections,” it makes broad substantive changes to the paid leave protections originally provided to employees.

Some provisions remain the same.  The amended Act still applies to all private employers with fewer than 500 employers.  Paid sick time will still be permitted to employees regardless of tenure, while employees with at least 30 days on the job will be eligible for the amended FMLA leave connected to the coronavirus.

However, the amended Act made several important revisions, primarily acting to reduce and restrict the benefits previously afforded employees:

Paid Sick Time (up to 80 hours/2 weeks paid leave)

  • Secretary of Labor now has the authority to issue regulations exempting small employers (fewer than 50 employees) from providing paid sick leave
  • Clarifies that paid leave time available only to workers who are unable to work or telework due to a more-tightly defined coronavirus-related absence
  • Healthcare professionals and emergency responders may be excluded from eligibility
  • Introduces new caps to paid sick time ($511/day and up to $5,110 for employee’s illness/quarantine and $200/day and up to $2,000 total for all other qualifying leave)
  • New cap for tax credit permitted for self-employed individuals

Paid FMLA Leave (up to 10 additional weeks of paid leave related to coronavirus emergency)

  • Extended paid FMLA leave is no longer available to employees for their own COVID-19 treatment or quarantine or care for their family members.
  • Paid FMLA leave available only to employees who are unable to work or telework due to caring for a minor child due to school closing or childcare unavailability
  • Healthcare professionals and emergency responders may be excluded from eligibility
  • Tightens the definition of “parent” to remove prior coverage for employees caring for next of kin and grandchildren
  • Paid leave capped at 2/3 of an employee’s wages, up to $200/day or $10,000 total

The bill is set to be taken up by the Senate this morning, with some reports indicating that the Senate is prepared to adopt it in its current form, allowing President Trump to enact it without the delay of a typical reconciliation process.

Phillips Murrah’s labor and employment attorneys continue to monitor new developments and stand ready to assist your company timely and efficiently implement these new paid leave obligations as soon as the final bill is signed into law.

 

Possible Relief for FMLA Administration Pain Points

It’s no secret that employers have found administration of leave under the Family and Medical Leave Act (FMLA) to be a significant pain point. Relief, however, may be on the way.

In a spring regulatory agenda notice, the U.S. Department of Labor announced that it is considering making some changes to the FMLA. The Department has asked the public for feedback on how to:

“(a) better protect and suit the needs of workers; and (b) reduce the administrative and compliance burdens on employers.”

Although DOL has released no specifics, many believe that the White House’s labor policy adviser, James Sherk, will be the driving force behind any upcoming changes.  Sherk’s earlier outspokenness about the shortcomings of the FMLA leave provides good insight into his thoughts about what needs to change.

In his 2007 Heritage Foundation report, Sherk outlined his views on employee FMLA abuse. His report portends changes could be on the horizon that will:

  • narrow the definition of what constitutes “a serious health condition;”
  • provide more power to employers to investigate an employee’s condition;
  • allow employers to require workers to take leave in half-day, rather than smaller, increments; and
  • allow employers to count FMLA leave against attendance bonus policies.

What changes could mean for employers

If Sherk really is the man behind the plan, employers may get the relief they seek.

First, limiting the definition of “a serious health condition” should make it more difficult for employees to abuse the FMLA. In his report, Sherk highlighted several instances where “irresponsible” employees were taking advantage of the current vague definition by calling routine colds, stress, or even an injured toe a “serious health condition”—even when the condition has no impact on the employee’s ability to perform job duties. This would also help to lessen the burden on other employees who are required to pick up the slack when co-workers abuse FMLA leave.

Second, providing employers with more power to investigate employees’ conditions would resolve the communication barrier between employers, employees, and health care providers when issues surrounding the complex and lengthy paperwork arise—satisfying the goal of reducing administrative burdens.

Third, allowing employers to require workers to take leave in half-day increments would decrease the heavy administrative burden of tracking an employee’s leave in minute increments. Rather than tracking the 12-weeks of allowed FMLA leave a minute at a time, a more manageable tracking unit of half-day increments would make what once was a monumental task for employers more manageable.

Finally, allowing employers to count FMLA leave against attendance bonus policies would both help employees with favorable attendance not feel cheated when those with spotty attendance are nonetheless rewarded and incentivize employees not to abuse FMLA. The DOL has found that because an employer may not punish an employee for using FMLA, even workers who miss 50 days a year due to FMLA leave can still be eligible for a perfect attendance bonus, diluting the incentive these bonuses are intended to provide. Correcting this would allow employees with excellent attendance to reap due awards and hit FMLA abusers where it hurts—their bank account.

Conclusion

While employers will have to wait for definite answers as to what changes, if any, we will see, the good news is that it appears that employer concerns about FMLA abuse are not falling on deaf ears. In the meantime, employers should continue to monitor the situation and hope that relief is on the way.


Janet Hendrick Profile portrait

Janet A. Hendrick

By Janet A. Hendrick and Matt Andrus

If you have questions about this decision, contact Janet Hendrick, who represents and counsels employers on issues including proper classification, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Matt Andrus is a second-year law student at Oklahoma City University and works as a law clerk for Phillips Murrah during Summer 2019.