Due to the overwhelming toll the COVID-19 coronavirus (“COVID-19”) is inflicting on the physical health of Americans and the health of the American economy, the federal government as well as many state governments have been taking action to try to stem the tide of the economic impact of COVID-19 on employees and employers.
In this legal alert, we will:
- Summarize the newly enacted federal law relating to time off, as well as newly adopted rules in Connecticut and New York.
- Summarize the leave and benefit options available under New Jersey law.
- Briefly address state unemployment benefits.
Of course, the response to COVID-19 is rapidly changing and the federal, state, and local governments are making many changes that do not relate to employee time off and unemployment benefits. You can find more information about all of these changes on the federal and state websites that are listed in this alert.
For an excellent resource on a wide variety of COVID-related HR issues, we recommend the comprehensive FAQs (https://www.fisherphillips.com/pp/alert-comprehensive-faqs-for-employers-on-the-covid.pdf) prepared by the Fisher Phillips law firm. These FAQs are being regularly updated.
On Wednesday, March 18, the Families First Coronavirus Response Act (the “COVID-19 Act”) became law. It goes into effect on April 2, 2020, and will expire on December 31, 2020.
In broad terms, the COVID-19 Response Act provides eligible employees leaves of absence and/or paid sick leave with respect to the coronavirus. These new provisions apply to most employers that employ fewer than 500 employees. This law does not apply to employers who employ 500 or more employees.
Federal tax credits will be available for employers who make the payments to employees required by this new law. Although employers can pay more than the dollar limits discussed below, the credits will be limited to the dollar caps set forth below. Nonprofits should consult with their accountants and payroll providers.
The Departments of Labor and Treasury are expected to issue guidance under this law.
Provides Paid Sick Leave for COVID-19 Related Illness (“PSL”)
- This new provision applies to all employees, without regard to how long they have been employed.
- The law provides for 80 hours of paid sick time for full time employees and prorated paid sick time based on an average of part time employees’ hours worked in the six months prior to taking leave for the employer for the following reasons:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- the employee is caring for an individual who is subject to an order as described (1) above or has been advised as described in (2) above;
- the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
- The employee must be paid 100% of their regular rate of pay or the applicable minimum wage, whichever is greater. However, employers are only required to pay employees two-thirds of their regular rate of pay if they are using leave for reasons (4), (5), or (6) above. The amount of payment for sick leave for reasons (1), (2), or (3) above can be capped at $511 per day and $5,110 in the aggregate. If an employee is using leave to care for reasons (4), (5), or (6) above, then the amount of sick leave pay can be capped at $200 per day and $2,000 in the aggregate.
- Employees cannot be retaliated against for the use this leave.
- The Secretary of Labor is authorized to issue regulations to:
- Exclude certain health-care providers and emergency responders from receiving this new PSL benefit.
- Exempt small businesses with fewer than 50 employees from providing PSL for the fifth reason set forth above when providing such PSL would jeopardize the viability of the business as a going concern.
- In addition, employers of employees who are health care providers (as that term is defined in the FMLA) or emergency responders may elect to exclude these employees from receiving this new PSL benefit.
Establishes Changes to the Family Medical Leave Act (“FMLA”)
- The changes to FMLA establish a new category of leave under the FMLA: a leave for “a qualifying need related to a public health emergency related to COVID-19,” defined as when an employee is unable to work (or telework) due to a need for leave to care for the employee’s son or daughter who is under 18 years of age if the child’s school or place of care has been closed, or the child care provider of the child is unavailable, due to a public health emergency.
- Employees only need to have been employed with the employer for 30 calendar days before they become eligible for a leave related to a public health emergency, instead of the usual FMLA requirements (that require an employee to have worked for the employer for at least 1 year, worked for 1250 hours in the year before FMLA leave is taken, and worked at a location where at least 50 employees are employed at the location or within 75 miles of the location).
- The first 10 days of the leave are unpaid, though an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
- After the initial 10 days of leave, the employer must pay the employee for up to 10 weeks of leave at a rate no less than two-thirds of the employee’s regular rate of pay. The amount of paid leave can be capped at $200 per day and $10,000 in the aggregate.
- Employees of employers with 25 or more employees are subject to the same job protections regularly provided in the FMLA, thus, generally speaking, an employer will need to return the employee to the same job or a substantially similar job upon return from leave. However, employers with fewer than 25 employees are excluded from this requirement if the employee’s job no longer exists due to an economic down turn caused by a public health emergency. However, the employer would be required to try to return the employee to work if circumstances improved during a defined one-year period.
- The Secretary of Labor is authorized to issue regulations to:
- Exclude certain health-care providers and emergency responders from receiving these new FMLA benefits.
- Exempt small businesses with fewer than 50 employees from these new FMLA requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.
- In addition, employers of employees who are health care providers (as that term is defined in the FMLA) or emergency responders may elect to exclude these employees from receiving these new FMLA benefits.
You can read more about the new federal law at https://www.jacksonlewis.com/publication/new-employer-obligations-under-slightly-revised-families-first-coronavirus-act-hr-6201; https://www.fisherphillips.com/resources-alerts-congress-finalizes-covid-19-coronavirus-response-act and https://www.nytimes.com/2020/03/19/upshot/coronavirus-paid-leave-guide.html.
You can find more federal resources here: https://www.dol.gov/coronavirus
COVID-19 Related Sick Leave
New York State has also passed significant legislation related to paid sick leave. Effective immediately employees who are subject to mandatory or precautionary quarantine or isolation due to COVID-19 will be provided the following:
- Employers in New York with 10 or fewer employees and a net income less than $1 million will provide job protection for the duration of a quarantine order and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
- Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million will provide at least 5 days of paid sick leave, job protection for the duration of a quarantine order, and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
- Employers with 100 or more employees, as well as all public employers (regardless of number of employees), will provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.
The leave is protected, meaning that the employee must be brought back to the same or substantially similar position upon return from leave.
Discrimination based on the need to use this leave is prohibited.
You can read more about the new law here: https://www.seyfarth.com/news-insights/paid-leave-and-coronavirus-part-iv-statewide-paid-sick-leave-law-and-separate-covid-19-related-leave-and-employee-protections-coming-to-new-york.html
Statewide Paid Sick Leave
New York will now also provide paid sick leave statewide. Previously, only New York City and Westchester County had paid sick leave laws. This law is set to go into effect in approximately 180 days. We will provide more information on this new law in a later legal alert.
Certain New York employees are already eligible for Paid Family Leave. You can find more about that here: https://paidfamilyleave.ny.gov/.
Unemployment and Disability Benefits
New York has also waived the 7-day waiting period for the eligibility of unemployment and disability benefits. You can learn more about that change here: https://www.ny.gov/services/get-unemployment-assistance
You can learn more about New York State’s Response to COVID-19 here: https://coronavirus.health.ny.gov/home.
New Jersey has several laws that guarantee employees:
- Medical or family leaves for up to 12 weeks (which, in some cases, can be in addition to the 12 weeks provided for under the federal FMLA),
- Paid/earned sick time, and/or
- Wage-replacement benefits for needs relating to their own health conditions; the health conditions of their family members (very broadly defined); quarantine orders; closures of workplaces, schools, and childcare centers due to public health emergency; and unemployment.
The NJ Department of Labor and Workforce Development has a web page dedicated to the coronavirus (https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml) that has FAQs and an extremely useful chart (in English and Spanish) that explain the different types of paid/earned sick time and other wage-replacement benefits that are available in at least 11 different scenarios. See also our article on NJ’s Paid Sick Leave Act, at https://www.probonopartner.org/publications/new-jersey-paid-sick-leave-act.
The NJ Legislature is considering a number of amendments to the foregoing laws. To learn more, see the summaries at https://www.jacksonlewis.com/publication/new-jersey-covid-19-bills-would-expand-employee-benefits-establish-benefits-independent-contractors and https://www.bracheichler.com/insights/labor-and-employment-alert-coronavirus-covid-19-getting-employers-through-these-uncertain-times.
The New Jersey Division on Civil Rights has a set of web pages that explain employees’ entitlements under the NJ Family Leave Act and the NJ Law Against Discrimination, at https://www.nj.gov/oag/newsreleases20/pr20200319a.html and https://www.nj.gov/oag/dcr/library.html.
You can find more about New Jersey’s response to COVID-19 at https://nj.gov.
Connecticut already has a paid sick leave law for certain employees. You can learn more about it here: https://www.ctdol.state.ct.us/wgwkstnd/SickLeave.htm.
In addition, Connecticut has changed its unemployment insurance requirements in response to COVID-19. Unemployment benefits are available to workers whose employer needs to temporarily shut down or slow down business. Employees who are furloughed by the emergency but expect to return to work can access up to at least six weeks of benefits. Employers reducing hours but not furloughing employees can partner with Connecticut Department of Labor’s Shared Work program, which allows employers to reduce employees’ work schedules by 10 percent to 60 percent and supplement lost wages with unemployment benefits. You can find more about this change here: http://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF.
You can find more about Connecticut’s response to COVID-19 here: https://portal.ct.gov/Coronavirus