NEW LAW ESTABLISHES CORONAVIRUS HEALTH INSURANCE AND EMPLOYEE LEAVE PROTECTIONS

​The Families First Coronavirus Act (H.R. 6201) became law on March 19, 2020. This legislation will have a significant impact on private health insurance plans and the employee leave policies for almost every American business. It is the second major relief bill enacted so far to provide economic relief and aid related to the COVID-19 pandemic. Here is a summary of its major provisions:Health Insurance Coverage Requirements

• All private individual and group health insurance providers must cover COVID-19 diagnostic testing, and they cannot apply any restrictions like prior authorization requirements when they do so.
• The requirement applies to self-funded employer groups and grandfathered health plans, as well as all fully-insured individual and group major medical plans.
• No out-of-pocket costs (deductibles, co-pays, coinsurance) can apply to COVID-19 diagnostic testing.
• People do not have to pay out-of-pocket costs for any office visits, telehealth visits, emergency room visits, or urgent care visits associated with getting COVID-19 testing. They also do not have to meet any cost-sharing requirements for services they might get while determining if they have COVID-19, like an MRI.

Employee Leave Requirements
The law creates two new programs to assist employees who cannot work due to reasons related to COVID-19.
Emergency Sick Leave

• This provision of the law applies to all entities that employ 500 people or less.
• The emergency sick leave provisions require affected employers to provide paid sick leave to virtually all full and part-time employees who cannot work or telework for reasons related to coronavirus. Full-time employees get 80 hours of leave, and part-time employees get a pro-rated amount based on their average hours over a ten-day period.
• Employers may exclude workers who are health care providers or emergency responders from the new leave benefits.
• The Department of Labor may craft emergency regulations to exempt small companies with 50 or fewer employees if compliance threatens the ongoing viability of the business.
• There are six reasons why an employee may take COVID-19 emergency sick leave:

1. 1. To respond to a federal, state or local quarantine order;
   2. To quarantine due to a request by a medical provider;
   3. To get coronavirus testing or treatment;
   4. To take care of family members ordered to quarantine;
   5. To care for children who cannot go to school or childcare due to coronavirus-related closures.
   6. If the employee has a related medical condition specified by the federal government.

• COVID-19 emergency sick leave must be in addition to any other employee sick or paid leave, and employers cannot require employees to take the COVID-19 leave instead of any additional leave they may have available. Employers also cannot alter any existing sick leave policies after the enactment of this law to avoid full compliance.
• The new emergency sick leave does not carry over, and if an employee needs to use less than ten days leave for reasons related to COVID-19, then the leave is capped at the amount required.
• When calculating the amount of the sick leave payments, an employer must use the greater of the employee’s regular rate of pay or federal, state, or local minimum wage.  People who are taking the leave for reasons 1,2 and 3 must get 100 percent of this amount.  Employees who are taking leave for reasons 4, 5, and 6 must receive 2/3 of this amount.
• This part of the law takes effect 15 days after enactment and expires on December 31, 2020.

Family Medical Leave Act (FMLA) Expansion

• The new law makes temporary changes to the Family Medical Leave Act (FMLA) to address the coronavirus public health emergency.
• The new FMLA provisions apply to businesses with 500 or fewer employees.
• The Department of Labor is authorized to adopt emergency regulations to exempt employers with 50 or fewer employees who cannot comply for business viability reasons.
• Affected employers must provide 12 weeks of leave to qualified employees with at least 30 days of service. The first ten days may be unpaid (employees may use other accrued paid leave if they wish). For the remaining ten weeks, employees must be paid at least 2/3 of their regular rate of pay up to a daily maximum of $200 ($10,000 aggregate over the ten weeks).
• To qualify for the new FMLA leave, the employee must be unable to work or telework due to a need to care for a child who cannot go to school or a childcare arrangement because of COVID-19 protections. Employers may exclude workers who are health care providers or emergency responders from the new FMLA benefits.
• The law also reduces penalty liability for employers with 50 or fewer employees. It stipulates that employers with 25 or fewer employees complying with this requirement do not have to guarantee job availability upon return to employees who take the COVID-19 FMLA leave.
• This part of the law takes effect 15 days after enactment and expires on December 31, 2020.

Federal Assistance to Employers

• To offset costs for the new emergency sick leave and FMLA requirements, applicable employers can claim a refundable tax credit against their portion of Social Security tax payments paid quarterly. If the amount of the tax credit exceeds the business’s total Social Security payment liability for a quarter, then the excess is refundable.
• The maximum emergency sick leave tax credit is $511 per day per employee ($5110 aggregate) who is taking leave due to a personal COVID-19 quarantine order or to seek COVID-19 testing (qualifying reasons 1-3).  The maximum credit is $200 per day per employee ($2000 aggregate) taking leave to care for a family member who needs assistance due to COVID-19 quarantine, to care for a child that cannot go to school or child care, or if the employee has a related health condition specified by the federal government (qualifying reasons 4-6).
• The maximum new FMLA tax credit is $200 per day per employee ($10,000 aggregate).
• Self-employed individuals may also claim an emergency sick leave tax credit if they need to take up to ten days leave from their work for any of the six reasons outlined as qualifying reasons for emergency sick leave for employees.  They can claim 100 percent of the credit for leave due to a personal COVID-19 quarantine order or to seek COVID-19 testing (qualifying reasons 1-3) and 67 percent of the credit for leave to care for a family member who needs assistance due to COVID-19 quarantine, to care for a child that cannot go to school or child care, or if the employee has a related health condition specified by the federal government (qualifying reasons 4-6).

Unemployment Insurance

• States will share in $1 billion of federal funding support for their unemployment assistance programs.
• To qualify for the federal funding assistance, states will have to relax their eligibility criteria to make it easier for people who have lost jobs due to the pandemic get help immediately.

Other Key Provisions

• The law requires all federal programs that provide people with health care and coverage to make COVID-19 testing available to participants with no required cost-sharing. These programs include Medicare, Medicare Advantage, Medicaid, the State Children’s Health Insurance Program, all sources of military and veteran’s coverage, and the Native American Health Services program.
• It establishes a mechanism to ensure that all uninsured people can also access COVID-19 testing for free.
• Modifications and expansions are made to nutritional programs for low-income people, children who receive school lunch assistance, and vulnerable senior citizens.
• It gives health care providers additional workplace protections.