On Tuesday, May 12, 2020, House speaker Nancy Pelosi unveiled a 1,815 page,1 $3 trillion COVID-19 relief bill that would touch on almost every area of the economy and impose new obligations on employers. Some areas are, however, arguably helpful to employers. The purpose of this alert is to provide a brief snapshot of those areas recognizing that the bill as a whole is beyond concise summary.
Heroes Act Proposes Massive Expansion of Paid Leave
The FFCRA requires employers provide two weeks of paid sick leave and up to an additional ten weeks of paid expanded family and medical leave at two-thirds the employee's regular rate of pay for certain enumerated reasons directly tied to COVID-19. Since its inception, many left-leaning groups have opined that the FFCRA's exemption of employers with more than 500 employees is far too broad in reach, effectively allowing large corporations to skirt responsibility for protecting employees during the Pandemic.
The measure as proposed would expand access to emergency paid leave to health care workers, first responders, workers at businesses with fewer than 50 employees, and workers at businesses with 500 or more employees, as these were previously excluded in the FFCRA. In other words, if enacted, the measure would expand paid sick leave and family leave obligations to all employers, regardless of size and without exemption for small businesses, for any reason related to COVID-19. The Heroes Act would not only expand the leave requirement to large employers—those with 500 or more employees—but Section 20227 of the Act also provides that these same employers would not benefit from the tax credits smaller employers would enjoy for paying mandatory leave benefits. The measure would also extend the sunset date of these emergency leave programs one year—from December 31, 2020 to December 31, 2021.
As a refresher, under the FFCRA, employees seeking emergency PSL or emergency FMLA have to demonstrate their factual circumstances fit within one of six qualifying categories. The Heroes Act would expand the qualifying circumstances for eligibility, allowing employees, among other reasons, to take leave to:
- Self-isolate because they were diagnosed with COVID-19;
- Obtain a medical diagnosis or to care for symptoms of COVID-19;
- Comply with a recommendation or order to self-isolate because physical presence at work would jeopardize the health of the employee, other employees, or a person in the employee's household;
- Care for a family member who is self-isolating;
- Care for a child whose school has closed or whose childcare provider is unavailable due to COVID-19 or
- Care for a family member who is individual with a disability or senior citizen whose place of care or direct care provider is unavailable.
Importantly, The Act would also temporarily suspend the original FMLA requirement that employees have worked 1,250 hours during the 12 months prior to the start of leave in order to qualify for nonemergency family and medical leave.
Other Provisions Meriting Discussion
While the expansion of leave obligations is the most immediately relevant provision of the proposal, the measure contains a laundry list of other important provisions, some of which are described in more detail below.
i. OSHA ETS
Long on the Speakers wish list, having been in several prior versions of COVID-19 relief bills, Division L, Title III of the Act also requires OSHA to issue an emergency temporary standard within seven days that would ostensibly cover all workers exposed to the virus. OSHA, of course, already has the power to issue emergency temporary standards under section 6 of the OSHA Act of 1970, but this provision will be a direct directive to OSHA to do so in time limitations which are frankly unrealistic. Among other obligations, the provision would require employers to develop and implement infection control plans to protect workers based on CDC and other expert guidance, expressly prohibit employers from retaliating against workers for reporting infection control problems to their employer, any public authority or to the media, require OSHA state plan to adopt the ETS within 14 days. It would give OSHA the discretion not to issue citations to hospitals and other covered employers due to shortages of equipment if the employer can show that they were making good faith efforts to purchase that equipment AND the employer is implementing alternative methods to protect its employees.
ii. Premium Pay
One issue often debated in the context of Coronavirus relief legislation is premium pay. Division Q, Title I of the Act creates a $200 billion fund for "premium pay" for essential workers—defined in a variety of ways. The fund would in essence be an additional $13 per hour as a supplement to regular wages up to $10,000 for these workers, including grocery store workers, healthcare workers, first responders, and workers in meat processing plants. The fund is voluntary and our review indicates that the additional premium pay would not be considered part of the base rate of the employer for the purposes of determining overtime. This could be a useful precedent.
Division S, Title XII of the bill includes several provisions on immigration that are useful to the business community. In essence, workers that lack proper authorization to work would be deemed to be in deferred action and authorized for employment as long as the workers fall under the essential critical infrastructure guidance from CIS. This temporary protection would last only for the length of the coronavirus emergency, but employers of these workers would be shielded from certain immigration-related violations for employing such workers. Additional provisions of the measure include increased flexibility for immigrant physicians and other healthcare workers to work in the US. Additionally, various filing deadlines have been extended to protect noncitizens that were lawfully present in the US when the public health emergency was declared.
iv. Pension Retirement Provisions
The Act contains several sections relating to funding of multiemployer plans, providing for relaxation of funding requirements for defined benefit plans generally and changes relating to defined contribution plans. An analysis of these provisions is beyond the scope of this alert, but we thought should be brought to your attention.
v. Workers Compensation
Although sparingly discussed, the Act, in separate sections, creates a presumption of causation of workplace illness arising from virus exposure for certain federal workers and for workers under the Longshore and Harbor Worker's Compensation Act. Some states have enacted similar provisions and this provision could very well set a precedent for many other states if enacted.
Concluding Thoughts: Future in the Senate and Liability Comments
While there are many provisions in the bill which make it dead on arrival in the Senate, it is worth reiterating that Senator McConnell has again noted that any future Coronavirus relief legislation would have to have some type of liability protections for frontline healthcare workers, businesses, non-profits, governments and manufacturers of therapeutics, diagnostics, and potential vaccines. As the Senator himself put it: "We are not going to stand idly by while a small group of wealthy lawyers vacuum up this relief money and redirect into their own pockets."2 Even under Senator McConnell's broad proposal, gross negligence would not be protected, but the exact parameters remain to be seen, as does the code of conduct with which these entities would have to comply to be entitled to the "liability shield." The touchstone appears to be whether or not the entity was acting reasonably and in good faith compliance with health guidelines. Of course, what compliance with those guidelines means will not always be a simple task to decipher, and there is some talk on the Democrat side of requiring OSHA and the CDC to issue a mandatory standard or regulation which would then determine that code of conduct. Apparently, workers compensation laws would not be touched under any formulation, nor is there any discussion about a liability shield for compliance with federal employment laws. For a more comprehensive analysis of the preemptive effect of a proposed shield and compliance with OSHA / CDC guidance, see Seyfarth's summary of the same here.