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How the CARES Act Could Change the Families First Act

The latest development in Congress's response to the COVID-19 pandemic has come in the form of Senate Bill 3548: The Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

Over the weekend through yesterday, the Senate actively debated the bill with two failed attempts to stop debate. As I post this at 8 a.m. on Tuesday, March 24, members of the U.S. Senate are still trying to work out a compromise agreement. While we expect some form of the proposed bill to become law, the exact language is still under construction.

If the proposed law is passed by the U.S. Senate and the U.S. House of Representative and then signed by President Donald Trump in its current form, the whopping 247-page document has lots of provisions related to tax breaks, loan programs, and other economic relief. Here, we break down the proposed bill specifically as it relates to the Families First Act, which was signed into law on March 18, 2020. For a breakdown of the Families First Act, see my colleague’s blog post.

Emergency Paid Sick Leave Act limitation

Section 4602 of the CARES Act identifies limitations on the two types of paid leave provided for by the Families First Coronavirus Response Act.

  • Caps compensation to $511 per day and $5,110 in the aggregate for any leave triggered by (1) federal, state, or local quarantine or isolation order; (2) self-quarantine on the advice of a health care provider; or (3) COVID-19 symptoms and seeking treatment.
  • Caps compensation to $200 per day and $2,000 in the aggregate for any leave triggered by (4) caring for an quarantined individual by a health care provider or an individual subject to a quarantine or isolation order; (5) caring for a child whose school or daycare has closed; or (6) experiencing any substantially similar medical condition.

This revision has the effect of lowering the compensation available to employees who take paid sick leave for reasons (4), (5), or (6).

Paid leave for rehired employees

Section 4606 expands the definition of “eligible employee” of the FMLA expansion to include employees who were laid off after March 1, 2020, were rehired by the employer, and worked for at least 30 of the 60 days prior to the layoff. This will allow eligible employees who are rehired after a layoff to take FMLA expansion leave immediately upon rehiring.

Advance funding of credits

Section 4607 allows for forgiveness of penalties and advance payment of credits allowed under the Families First Act.

OMB waiver of paid family and paid sick leave

Section 4605 allows the Director of the Office of Management and Budget to exclude for good cause certain Executive Branch employees from the FMLA expansion and Emergency Paid Sick Leave.

Miscellaneous Provisions

In addition to these substantive changes, there are a couple of minor changes suggested by the CARES Act. For example, section 4601 of the bill seeks to clarify the FMLA expansion portion of the Families First Act by making it very clear that no employee will receive more than $200 per day or $10,000 total for paid leave. Section 4604 allows for employees to file for unemployment benefits in person, by phone, or online.

Lastly, the CARES Act provides for financial relief to businesses. See Billy Whyte’s post.

Remember, the CARES Act has not yet been approved by the House of Representatives or the President. But we expect it to be voted on soon as Congress scrambles to provide assurances to businesses and employers alike during these uncertain times. We will continue to update this blog as the situation unfolds.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2020

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