On Wednesday, President Donald Trump signed legislation responsive to the COVID-19 pandemic. The legislation, known as the Families First Coronavirus Response Act (Act), contains employment provisions that have two primary effects — increasing an employee’s right to take protected leave under the Family and Medical Leave Act (FMLA) and requiring employers to provide paid leave in certain circumstances, both of which are reimbursable to some employers via payroll tax credits. The Act also requires coverage changes in employer-sponsored health plans, which are effective immediately. The employment provisions of the Act are effective no more than 15 days from enactment, and the Department of Labor is directed to issue guidance within that time to assist with implementation. Here is what employers need to know now:
NEW FMLA LEAVE ENTITLEMENTS
The provision in the Act, titled “Emergency Family and Medical Leave Expansion Act,” expands the FMLA to provide additional leave (COVID-19 FMLA Leave) related to COVID-19. This new COVID-19 FMLA Leave does not expand coverage for ordinary FMLA leave. Specifically, it requires:
NEW PAID SICK LEAVE
The provisions requiring paid sick leave (Paid COVID-19 Sick Leave) are set forth in the section, titled “Emergency Paid Sick Leave Act". These provisions applies to public employers and all private employers with fewer than 500 employees, unless the Department of Labor exercises its power under the Act to exempt certain private employers, including health care providers, first responders and private employers with less than 50 employees. Here are the specifics:
NEW GROUP HEALTH PLAN COVERAGE
All group health plans, insured and self-insured, must cover FDA authorized COVID-19 testing at no cost-sharing and with no medical management requirements, such as prior authorizations. The testing must be provided without application of any deductible, co-insurance, or co-pay. The coverage must also include items that result in an order for COVID-19 testing. There is a great deal that is uncertain about how these rules will be applied to employer health plans. It is important that employers contact their insurers and third party administrators to discuss how this provision will be implemented since it is effective immediately.