On March 18, 2020, Congress enacted a supplemental appropriations bill, H.R. 6201, as a first step in addressing the economic and workforce issues caused by the coronavirus. This legislation has several significant provisions that directly relate to employment law, and passed the Senate by a veto-proof 90-8 margin.
However, with respect to the paid leave provisions, the Senate rejected both the pro-employee amendment offered by Senator Patty Murray (D.-Washington) which would have increased the number of employees protected, and the pro-employer amendment offered by Senator Ron Johnson (R.-Wisconsin), which would have used state unemployment funds to cover the costs of paid leave (shifting the burden from employers to cash-strapped state governments).
Division C expands the federal Family and Medical Leave Act (FMLA). In particular, the FMLA currently only applies to employers who have 50 or more employees; this would extend the FMLA coverage for coronavirus-related leave to all employers who have anywhere from 1 to 499 employees. The assumption was that larger employers already provide paid leave – an assumption that may not always be warranted. If an employee has to take FMLA leave as a result of coronavirus, including to take care of children who are staying home from school, then the employee has the right to take 10 days unpaid leave (or can use accrued leave), followed by paid leave thereafter for a total of 12 weeks, for at least 2/3 of their base pay (but no more than $200 per day or $10,000 total).
However, there are several serious limitations to this FMLA amendment:
First, employers in the health care field or emergency responders can choose to exclude their own employees from being able to take this leave. The result is that those who are most likely to be exposed to coronavirus are the ones who are least likely to be able to benefit from this legislation.
Second, the legislation does not change the definition of “employee” – under the FMLA, as for most federal and state laws, workers who are independent contractors and interns are not “employees” and hence remain unprotected. This includes, for example, many workers in the “gig economy,” although some courts are now starting to recognize that those workers are, for all practical purposes, employees.
Division E is the “Emergency Paid Sick Leave Act.” This provides for paid sick leave if the employee cannot work or telework due to his/her own illness, or the need to care for others. However, it also has the same health care provider and emergency responder exclusion as for the FMLA, and does not cover independent contractors, interns, and others in the gig economy.
The legislation also prohibits retaliation against employees who try to assert their rights to FMLA leave or paid sick leave, and provides an enforcement mechanism.
The legislation is a good first step. Hopefully the discussion of its limitations, particularly the narrow definition of “employee,” will increase the public awareness of the shortcomings of FMLA and other employment discrimination and retaliation laws in protecting all workers in today’s economy.
–Alan R. Kabat (Bernabei & Kabat, PLLC)