Speaker Nancy Pelosi circulates legislation which would make significant amendments to the family and sick leave provisions of the recently enacted “Families First Coronavirus Response Act;” future uncertain.

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This morning Speaker Nancy Pelosi circulated legislation for introduction, entitled the “Take Responsibility for Workers and Families Act” (the “Pelosi bill”) (which is over 1,100 pages long), apparently to position the U.S. House of Representatives for negotiations with the Senate. As you know, there have been bipartisan negotiations in the Senate on a broad package to provide economic relief for businesses and workers damaged from the COVID-19 crisis, but these fell apart late last night; a motion to proceed this morning also failed.

The purpose of this alert is to inform you that the leave provisions in the Pelosi bill include several important changes to Public Law 116–127, the “Families First Coronavirus Response Act” (“Families First Act” or the “Act”), relating to the Act’s paid family and medical leave (“PFML”) and paid sick time (“PST”) provisions. Our prior alerts on the Families First Act’s PFML and PSL provisions are available here, here, and here. The Pelosi bill also includes a new OSHA requirement for an emergency temporary standard.

Here are some of the important PFML and PST changes we've identified thus far in the Pelosi draft:

• The threshold for employer coverage for both PFML and PST would be changed from only applying to private employers with less than 500 employees to applying to private employers with one or more employees – i.e., universal coverage.
• The grounds for the leave would be generally expanded under the PFML beyond absences to care for a son or daughter whose school or child care provider has been closed by an order relating to COVID-19. In addition, the PST reasons for use have been changed, with the reasons now more closely resembling the reasons for use that existed in the version of the Families First Act that passed the House on March 14. Further analysis of these specific developments as compared to the reasons for use under the Families First Act will be included in future alerts.
• Leave taken under the Pelosi bill would be independent from leave taken by an employee under other provisions of the federal Family and Medical Leave Act (“FMLA”). In other words, whatever unpaid FMLA leave the employee may have already taken, or will take, would not be able to be subtracted from the total required PFML under the Pelosi draft.
• The PFML and PST provisions would now sunset on December 31, 2021, and not December 31, 2020.

There is also a new provision which would require OSHA to issue an emergency temporary, and then permanent, standard to protect employees of healthcare sector employers, employees of employers in the paramedic and emergency medical services, and employees in other sectors and occupations whom the Centers for Disease Control and Prevention or OSHA identifies as having elevated risk. The standard is to be issued seven days after enactment with a final standard within 24 months.

Negotiations between the Senate and the House are ongoing and we will keep you up-to-date as to developments.