On May 12, 2020, the Democratic leadership of the U.S. House of Representatives unveiled its opening bid in the next round of COVID-19 response legislation. As expected, the proposal—the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act—includes a number of labor and employment provisions of great significance to employers, including expansion of prior laws, and new proposals aimed at providing relief to workers during the public health emergency.
Senate Republicans have yet to unveil their proposal, although their leadership has indicated that providing employers with protection from liability related to COVID-19 lawsuits will be highest on their list of priorities. Negotiations in the coming weeks are expected to be acrimonious, and whether and which of either side’s priorities will make it into a “phase 4” relief bill is unclear (as are the details of what form these proposals might take).
Key provisions of interest to employers in the House’s HEROES Act relief package (which clocks in at over 1,800 pages, and is estimated to cost in excess of $3 trillion) include:
- Extending the $600/week pandemic unemployment compensation supplement through January 31, 2021, and extending additional unemployment benefits through March 31, 2021
- Adding new stimulus payments of $1,200 to individuals and family members (including children) subject to income restrictions
- Expanding the Emergency Family and Medical Leave Act (EFMLA) (created in the Families First Coronavirus Response Act (FFCRA) signed into law in March) by extending the required benefit to private-sector employers, regardless of size
- Expanding the reasons for which paid EFMLA leave may be taken beyond the current limitation that allows paid EFMLA only where a worker’s child’s school or child care facility is closed due to COVID-19
- Providing that “emergency” EFMLA does not count against employees’ existing FMLA banks, and that only employees may choose to take paid EFMLA concurrent with other paid leave they have available
- Expanding the Emergency Paid Sick Leave Act (EPSLA)—also created by the FFCRA—to employers of any size (rather than the current law’s “less than 500 employees” cutoff)
- Eliminating the health care, first responder, and small employer exemptions to the EPSLA and EFMLA
- Creating hazard and incentive pay for certain workers, paid by employers but reimbursed by the federal government, retroactive to January 27, 2020
- Amending the Paycheck Protection Program (PPP) created by the Coronavirus Aid, Relief, and Economic Security (CARES) Act to extend the covered period for use of the loan for up to 24 weeks after loan origination, or December 31, whichever is earlier
- Allowing PPP borrowers additional time (to December 31, 2020) to bring employees back on the payroll for purposes of loan forgiveness
- Providing that employers will not be penalized in terms of PPP loan forgiveness where they are unable to rehire certain workers or cannot find similarly qualified employees
- Extending maturity of PPP loans to a minimum of five years
In addition to these employment-related provisions, the bill includes $500 billion for state and local governments facing the impacts of the public health emergency on their economies, $3.1 billion for the Department of Labor (to support worker training, as well as outreach, education, and enforcement efforts relating to COVID-19), $90 billion for school districts, contact tracing, relief for single-employer and multi-employer pension plans, and restoration of the full deduction of state and local taxes limited in the 2017 tax reform bill.
We stress that these proposals are just that—proposals. The battle over what is included in this next round of relief legislation is by all accounts expected to be heated, and likely to consume the coming weeks.