New Analysis on H.R. 6210

Emergency FLSA

• Benefit
  • Employers must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency.”
    • “qualifying need” is limited to when an employee is unable to work (or work remotely) due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.
  • Compensation
    • the first 10 days of leave may be unpaid.
    • the remainder must be compensated at 2/3 of the employee’s regular rate, in most circumstances.
      • this covers the number of hours the employee would otherwise have been scheduled to work.
    • compensation is capped at $200 per day, $10,000 aggregate.

• Eligibility:
  • Employees on payroll for 30 calendar days.

• Exemptions:
  • Employers with fewer than 50 employees in a 75-mile radius
  • Employers may exclude employees who are health care providers or emergency responders from this emergency FMLA entitlement.
    • “health care provider” appears to be defined as follows:
      • a provider who—
      • (A) (i) is a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (ii) is any other person determined by the Secretary to be capable of providing health care services; and
      • (B) is not employed by an employer for whom the provider issues certification under this Act. See Division F. Sec. 102(7)

• Special powers for the Secretary of the Department of Labor
  • The language appears to allow the Secretary to exclude health care providers and emergency responders from the definition of employees who are allowed to take such leave, and exempt small businesses (defined as those with fewer than 50 employees) if the required leave would jeopardize the viability of their business.

Emergency Paid Sick Leave

• Eligibility: immediate, no limitations

• Benefit
  • Compensation
    • $511 per day and $5,110 aggregate, this applies to the following circumstances – an employee who is unable to work or telework because:
      • the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
      • the employee has been advised by a health care provider to self-quarantine because of COVID-19; or
      • the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    • $200 per day and $2,000 aggregate this applies to the following circumstances – an employee who is unable to work or telework because:
      • the employee is caring for an individual subject or advised to quarantine or isolation;
      • the employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions; or
      • 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.

• Exemptions
  • Employer may exclude employees who are health care providers or emergency responders from this coverage.
  • Secretary of Labor also has powers as noted above to issue regulations to exclude health care providers and assist small businesses. Additionally the Secretary may pass regulations to ensure consistency between paid family and sick leave and the tax credits for employers.

• Consequences for failure to comply
  • employers will be liable for retaliating against employees taking and requesting such leave
  • failure to pay will result in liability under the Fair Labor Standards Act for failing to pay minimum wages.