Families First Coronavirus Response Act: What's Included and Who Got Left Out

The coronavirus pandemic has laid bare how ill-prepared the U.S. is to address basic human needs. Unlike every other wealthy nation, the US fails to provide access to health care for everyone, paid time off for workers who are sick, safety standards to protect health workers, adequate payment to caregivers for people with disabilities, or financial support for businesses in times of natural disasters or widespread illness.

The House of Representatives, led by Speaker Nancy Pelosi and Representative Rosa DeLauro, stepped up to fill this void. In the early hours of Saturday morning, in a stunning victory for the House leadership, the Democrat's Families First Coronavirus Response Act, with compromises negotiated by Pelosi and Treasury Secretary Steven Mnuchin, passed the House on a bipartisan 363-40 vote. It is urgent for the Senate to pass this bill quickly and for the President to sign it as soon as it reaches his desk.

The multibillion-dollar bill includes important provisions that will save lives as the pandemic unfolds, and will help families and businesses weather the financial fallout from the crisis. The legislation that passed provides paid time off for many--though not all--of the workers whose livelihood is, or will be, threatened by the rapid spread of the coronavirus. The legislation excludes employers with 500 or more employees from the paid sick days and paid family and medical leave provisions. The bill that passed temporarily guarantees 10 paid sick days (80 hours) to full-time workers, prorated for part-time workers. Employers with fewer than 500 employees are required to provide paid sick days to all workers at their regular rate of pay for their own illness and at two-thirds pay to care for a family member.

The Family and Medical Leave Act (FMLA) is temporarily amended to provide paid leave to employees working for a business with fewer than 500 employees. Following the first 14 days of absence from work, workers who require further days of leave will be covered under the FMLA for up to 12 weeks, collecting at least two-thirds of their monthly pay. These paid leave provisions will reduce the public's exposure to the virus and help flatten COVID-19's exponential growth curve.

Passage of the Families First bill means the food security of low-income families will be protected. Kids who depend on school meals will get fed; women, infants, and children will continue to get food support through the WIC program; and the SNAP (food stamps) program will be temporarily expanded to cover poor or jobless workers and provide emergency food allotments for families suddenly in need of food.

The legislation provides emergency transfers of funds from the federal government to state unemployment insurance (UI) funds so states can meet the increased demand for UI benefits as a result of layoffs related to the coronavirus. States can modify their work search and first-week unpaid rules or choose not to raise UI premiums for employers whose workers claim benefits during the health crisis.

Diagnostic testing for COVID-19 is free. Health insurance companies are required to cover diagnostic testing and are not allowed to impose any cost-sharing on those tested. Patients do not need to get prior authorization to get tested. State Medicare, Medicare Advantage, Medicaid, and CHIP programs are required to pay 100 percent of the costs of diagnostic tests. The federal government will reimburse costs for these tests and for testing people with no insurance. Unfortunately, the federal government has not offered to cover the costs of care for individuals diagnosed with the disease.

Employers can claim a quarterly tax credit against payroll taxes for payments for sick days and family and medical leave up to an amount that does not exceed the business' total payroll taxes paid in that quarter. Any claims in excess of this amount will not be reimbursed. Self-employed workers, including independent contractors and gig economy workers, can claim a credit against their self-employment taxes. Importantly, the Families First legislation appropriates payments from general taxes to the Social Security trust funds equal to the revenue lost as a result of these payroll tax credits and assures that the solvency of the trust funds and Social Security's ability to pay workers retirement benefits are not affected.

The Families First Coronavirus Response Act that passed the House provides a wide array of much needed temporary benefits that will reduce the spread of COVID-19 and will enable people and businesses to get through the pandemic. However, it incorporates a series of compromises demanded by the administration and agreed to by Speaker Pelosi in order, as she put it, to "assure the American people, that we are willing and able to work together to get a job done for them." Important provisions of the original House bill were left on the cutting room floor.

One of the most egregious compromises is the "big box store exclusion" that excludes employers with more than 500 employees from the Families First bill's paid sick days and paid leave provisions. The legislation excludes workers at big companies like Whole Foods and McDonald's as well as those at Walmart and Target, whose CEOs appeared with President Trump on Friday afternoon as he declared a national health emergency. Small employers with less than 50 employees can seek a hardship waiver from the Trump administration's Department of Labor.

The American Hospital Association lobbied successfully to eliminate provisions that would have set safety standards for health care workers and shielded nurses, EMTs, and other workers on the frontlines of the battle against the pandemic from contracting COVID-19. One wonders what hospital executives are thinking, since protecting workers is vital to keeping hospitals from becoming short-staffed and unable to care for seriously ill patients. Not having rules exposes nurses, doctors, aides, and others to a heightened risk of infection.

The original House bill allowed paid sick days to be utilized to care for loved ones who are "otherwise in need of care." This would have covered situations where people with disabilities lose their paid caregivers due to the pandemic and need a loved one to provide the necessary care. Unfortunately for individuals with disabilities, the compromise bill does not cover a family member who takes off from work and steps-in as a caregiver in this situation.

It's not possible to know what would have happened if House Democrats had not engaged in negotiations with the Trump administration over the bill. The original bill could have passed in the House even without the support of Republicans, although it is likely that some may have voted for it. But what about the Republican-controlled Senate? GOP senators were wary of returning to their districts without passing something that would protect the public's health and that would bailout their constituents. It is not difficult to imagine that some would have broken with the administration and voted for a more robust bill without carve outs for big employers.

Finally, we should note that the provisions of the Family First act sunset at the end of 2020, leaving workers once again without paid leave and all of us vulnerable if the coronavirus reappears in 2021. The pandemic highlights, if it were not already obvious, the urgent need for national paid sick days and national paid family and medical leave so that every worker can care for themselves or a loved one when illness strikes.