Dems Float More Leave, Hazard Pay In New Virus Relief Bill

By Braden Campbell
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Law360 (May 12, 2020, 9:13 PM EDT) -- The employment-related provisions of a broad coronavirus relief plan House Democrats unveiled Tuesday would make all employers provide emergency paid leave, raise federal safety standards for high-risk workplaces and fund $13 hourly raises for almost all non-remote workers.

The Democrats' proposal for a fifth aid package includes a $200 billion grant program to help businesses raise pay for "essential workers" and a revision to March's paid leave mandate making large employers provide workers paid time off if they can't work for various reasons tied to the virus.

The 1,800-plus page HEROES Act, which would also fund ailing state and local governments and provide more direct stimulus payments, sets the stage for negotiations with Senate Republicans angling to protect businesses from lawsuits stemming from the pandemic.

The bill's employment provisions would bolster unemployment, leave and other worker protections included in past relief measures and create new benefits, including thousands of dollars in retroactive raises for workers on the front lines of the pandemic.

It would do so through a $200 billion COVID-19 HEROES Fund employers can tap to provide $13 hourly raises to essential workers retroactive to Jan. 27, when the pandemic is considered to have become a public health emergency.

The bill provides for increased pay for "essential" work, defined as non-telework that involves "regular in-person interactions" or "regular physical handling" of items. It includes dozens of examples of workers who would qualify for raises, including first responders, health care workers, grocery workers and couriers. These payments would be capped at $10,000 for most workers and $5,000 for workers earning more than $200,000 per year.

The act would also adjust the paid leave provisions of the Families First Coronavirus Relief Act to make more businesses provide paid time off for more reasons.

A part of that law known as the Emergency Family and Medical Leave Expansion Act makes employers with fewer than 500 employees provide workers up to 12 weeks off at partial pay if they can't work because their child's school has closed. The HEROES Act would extend that obligation to employers with "1 or more employees" and let workers take off for other reasons, including to self-isolate following a COVID-19 diagnosis or to take care of a family member who has the virus.

Other workplace-related provisions would make the U.S. Department of Labor's Occupational Safety and Health Administration issue an emergency standard making employers protect high-risk workers from the virus or face fines, extend the availability of heightened unemployment benefits, and expand tax credits for businesses struggling to meet payroll, rent and other obligations.

Aspects of the bill drew praise from workers' advocates Tuesday. Sherry Leiwant, the co-president of paid leave advocacy group A Better Balance said the proposed tweaks "would close loopholes in the existing law that exclude millions of workers."

And heightened safety standards will save workers' lives, said Deborah Berkowitz, a former OSHA official who now heads the worker safety and health program at the National Employment Law Project. Berkowitz and others have repeatedly called on OSHA to raise protections, but the agency has instead urged employers to follow Centers for Disease Control and Prevention guidelines.

"OSHA has failed in its responsibility to protect workers, and so now it's up to Congress to assure that OSHA does its job and that workers are protected, especially as we reopen the economy," she said.

But it's unlikely that many of the bill's employment provisions become law, said Michael Lotito, an attorney with Littler Mendelson PC who represents businesses in policy discussions with lawmakers. He described the bill as a "wishlist" meant as a message, rather than a practical policy proposal. Still, lawmakers must give "very serious consideration" to bolstering unemployment to blunt the virus' continued impact, and the worker safety issue appears to be a squeaky wheel, he said.

"A lot of people were talking about this OSHA safety rule" at a Senate Judiciary Committee hearing on shielding businesses from civil lawsuits related to COVID-19, he said. "That's something that's going to have to be dealt with."

--Additional reporting by Andrew Kragie and Y. Peter Kang. Editing by Haylee Pearl.

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