Keenan Briefings

Briefings

H.R. 6201: Families First Coronavirus Response Act Provides New Provisions Aimed at Coronavirus Preparedness

March 20, 2020

On March 18, 2020, the Senate passed and President Trump signed into law H.R. 6201, the Families First Coronavirus Response Act. The bill establishes an emergency expansion of the Family and Medical Leave Act (FMLA), requires certain employers to provide paid sick leave to employees who miss work due to coronavirus, and requires private and government health plans to provide coverage for COVID-19 testing and other services at no cost to the individual, among other provisions aimed at coronavirus preparedness and response.The relevant provisions for Keenan clients are summarized below.The full legislation can be found at:

https://www.congress.gov/bill/116th-congress/house-bill/6201

FMLA Provisions

The Emergency Family Leave Expansion Act section of the bill expands the circumstances under which an employee is entitled to take leave under the FMLA to include “a qualifying need related to a public health emergency.” This provision applies to private sector employers with fewer than 500 employees and all public employers. The law gives the U.S. Department of Labor (DOL) the authority to issue emergency regulations to exempt businesses with fewer than 50 employees if it “would jeopardize the viability of the business as a going concern.” Furthermore, for businesses with fewer than 25 employees, there is no reinstatement guarantee if an employee takes coronavirus leave and:

  1. The employee’s position ceased to exist because of changes in operating conditions of the employer that impact employment and are caused by the coronavirus during the time the employee is on leave;
  2. The employer makes reasonable efforts to restore the employee to an equivalent position; and,
  3. If the employer cannot restore the employee to an equivalent position, the employer makes reasonable efforts to contact the employee about available equivalent positions for one year from either the date on which the qualifying need concludes or 12 weeks after the employee’s coronavirus leave starts (whichever is earlier).
  4. Under the FMLA expansion, “eligible employees” are those who have been employed by the employer for at least 30 calendar days. The law gives the DOL the authority to issue emergency regulations to exclude health care providers and emergency responders from the definition of “eligible employee.”

    “Qualifying needs” for the leave will include:

    1. To comply with a recommendation or order by a public official having jurisdiction or a health care provider on the basis that:
      1. The physical presence of the employee on the job will jeopardize the health of others because of exposure to the coronavirus or exhibition of coronavirus symptoms; and
      2. The employee is unable to perform their job functions and also comply with the recommendation or order;
    2. To care for a family member to whom (1) above applies; or
    3. To care for the employee’s child under the age of 18 if the child’s school or place of care has been closed or if the child’s care provider is unavailable due to a public health emergency.

    The FMLA expansion provides that the first 14 days of leave may consist of unpaid leave, but employers are required to provide paid leave for any additional days taken beyond 14. Employees are permitted to substitute any accrued vacation, personal, medical or sick leave for the unpaid leave portion, but employers may not require that they do so. The paid portion of the leave must be at least two-thirds of the employee’s regular rate of pay based on the number of hours the employee would normally be scheduled to work. Variable hour employees’ pay is based on the number of hours scheduled per day for the prior six months, or if the employee did not work during that period, based on the reasonable expectation of the employee at hiring for the average number of hours per day.

    Paid Sick Leave

    The new law also includes a provision called the Emergency Paid Sick Leave Act. This provision applies to almost all private sector employers employing fewer than 500 people, as well as all employees as defined in the Fair Labor Standards Act (FLSA), and all state and federal employees (other than members of the armed services) regardless of the size of the employer.It requires those employers to provide up to eighty (80) hours of paid sick leave to employees in connection with the coronavirus, in addition to the sick leave they already provide.

    Qualifying reasons for mandatory paid sick leave include:

    • To self-isolate because the employee has been diagnosed with COVID-19;
    • To obtain a diagnosis or care if experiencing symptoms of the coronavirus;
    • To comply with an official order or recommendation because of exposure or symptoms, or to care for or assist a family member who has either been diagnosed with or is experiencing symptoms of the coronavirus.

    This mandatory paid sick leave cannot be carried over year-to-year and ceases immediately as soon as the employee no longer has a qualifying reason.

    Eligible full-time employees are entitled to 80 hours of paid sick leave under this provision. Each eligible part-time employee is entitled to a number of hours of paid sick leave equal to the average number of hours the employee works over a 2-week period. The amount of payment is based on the employee’s “required compensation” – the greater of the employee’s regular rate of pay as determined under the overtime provisions of the FLSA, the federal minimum wage, or the state minimum wage.

    The mandatory paid sick leave provisions in the bill prohibit employers from doing any of the following:

    • Requiring the employee to take other paid leave before the paid leave required by the law
    • Changing its sick leave policy on or after the date of enactment to avoid these requirements
    • Requiring an employee to search for or find a replacement to cover their hours.

    This new law requires the employer to post an Emergency Paid Sick Leave Act notice at its workplace. This notice will be made available by the DOL by Wednesday, March 25, 2020.

    Health Coverage

    The new law also requires health plans to provide coverage for testing and other services related to the coronavirus. This provision applies to all group health plans (including self-insured group health plans) and health insurance issuers that offer group or individual health insurance coverage. Under this provision, plans and carriers must provide coverage for the following tests and services without any cost sharing, prior authorization or any other medical management requirements:

    1. In vitro diagnostic testing (i.e. blood or body sample) cleared or authorized by the U.S. Food and Drug Administration (FDA), and
    2. Items and services furnished to an individual during health care provider office visits, urgent care center visits and emergency room visits that result in an order for or administration of an in vitro diagnostic test described in (1) above.

    Please note: this coverage mandate is broader than the current California Department of Insurance (CDE)/Department of Managed Health Care (DMHC) mandate regarding cost-sharing for testing for coronavirus.

    Next Steps

    • Employers affected by the changes in FMLA and mandatory sick leave provisions should amend their current leave policies to incorporate the new law.
    • Employers should ensure that they post the required notice for paid sick leave when it becomes available.
    • Keenan will work with carrier partners. The Keenan TPA will work with self-insured employers to regarding these new requirements.

    Congress is already working on additional legislation to provide emergency support to families and certain affected industries.To the extent that that legislation impacts Keenan clients and programs, we will make sure to inform you of the details as they emerge.


    Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.