What Employers and Employees Need to Know About Coronavirus (COVID-19) Sick Leave

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act into law providing emergency paid sick leave and expanding the Family and Medical Leave Act for employees under certain circumstances. With respect to New Jersey, Governor Murphy signed a number of legislative measures addressing COVID-19 concerns, one of which affords protections to employees who have taken leave in certain circumstances.  Other measures enacted by the New Jersey Legislature have not yet been signed into law.

This is a rapidly evolving situation, and the law is changing by the day. Our employment lawyers are following this situation closely and will be updating the Levine Staller blog page as more information becomes available. For immediate assistance, please e-mail Tony Morgano, Esq., or John Hoffman, Esq.

A summary of the latest Federal law can be found below:

Families First Coronavirus Response Act

On March 18, 2020 U.S. President Donald Trump signed the Families First Coronavirus Response Act (H.R. 6201) into law. The Families First Act established paid sick leave under a new law known as the Emergency Paid Sick Leave Act, and additionally extends the existing federal Family and Leave Act (FMLA)

The Families First Coronavirus Response Act is set to take effect no later than April 2 and will continue to December 31, 2020.

Emergency Paid Sick Leave Act

This act takes effect no later than April 2, 2020 and expires on December 31, 2020, and thus employers have no legal obligation under the law following its expiration at the end of the year.

Employers with fewer than 500 employees must provide full-time employees with 80 hours of paid sick leave and part-time employees with paid sick leave equal to the average number of hours such employees work over a two-week period if such employees are eligible to receive paid sick leave and cannot work or telework under certain circumstances.

Eligibility:

Regardless of how long they have been employed by their employer, employees may be eligible for emergency paid sick leave if they are under a COVID-19-related quarantine or isolation order; or have been advised by a healthcare provider to self-quarantine due to COVID-19 concerns; are experiencing COVID-19 symptoms and are seeking a medical diagnosis; are caring for another who is under a COVID-19-related quarantine or isolation order or have been advised to self-quarantine; is caring for a child whose school or care provider has been closed due to COVID-19 concerns, or is experiencing a similar condition specified by the Secretary of Health and Human Services.

Importantly, business closures are not a covered reason for paid sick leave.

An employer cannot require an employee to use any other paid leave provided by the employer before the employee uses the paid sick leave under the Act.  Stated differently, the emergency paid sick leave is in addition to any existing paid sick, PTO or vacation benefits provided by the employer. An employee may, at their election, use the paid sick leave available under the Act first for the purposes described above.

Pay:

Employers must compensate employees for paid sick leave at the higher of:

  • the employee’s regular rate of pay;
  • the federal minimum wage; or
  • the local minimum wage.

Paid sick leave is capped at $511 per day and $5,110 in the aggregate.  However, if taking leave to care for another or a child whose school or care center is closed or under conditions specified by the Secretary of Health and Human Services, employees shall be compensated at two-thirds of the applicate rate, not to exceed $200 per day and $2,000 in the aggregate.

Employees are not entitled to be paid for any unused emergency paid sick leave provided for under the Act upon the employee’s termination, resignation, or retirement.

Tax Credits:

Section 7001 of the act provides refundable tax credits for employers who are required to provide emergency COVID-19 sick leave, which are allowed against the employer portion of the Social Security taxes.

Each quarter, employers that must provide paid sick leave in accordance with the Act are entitled to a fully refundable tax credit equal to 100 percent of the qualified paid sick leave wages paid by such employer.

Anti-retaliation provision:

Employers cannot discharge, discipline, or in any other manner, discriminate against an employee who has used paid sick leave under the Act or who filed a complaint or instituted any proceeding to enforce the Act.

The Act provides that an employer who is a “health care provider” or an “emergency responder” may elect to exclude an employee from eligibility to receive paid sick leave under the Act.  However, the Act does not define the term “health care provider.”

The Act also authorizes the Department of Labor to exempt small businesses with fewer than 50 employees from the Act “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”

Emergency Family and Medical Leave Expansion Act

The Families First Coronavirus Response Act also amends the Family and Medical Leave Act to provide additional job related protections for employees. The Act takes effect April 2, 2020 and expires on December 31, 2020.

Eligibility:

Under the expansion, employees who are unable to work or telework because they must care for a child under 18 whose school or care center is closed because of a COVID-19 public health emergency can take up to 12 weeks of job-protected leave for employees.

The Emergency FMLA leave runs concurrently with traditional FMLA leave, meaning the 12 weeks of job leave is not in addition to the traditional 12 weeks of leave provided by the FMLA.

The leave is available to employees who have worked at least 30 calendar days. The existing FMLA requires employees to have been employed for a year.

The expansion covers employers with fewer than 500 employees.   The Department of Labor may exempt small businesses with fewer than 50 employees from the Act in certain circumstances where the imposition of the Emergency FMLA would jeopardize the viability of the business as an on-going concern.

Certain health care providers and emergency responders are excluded from the list of employees eligible for leave.

Protected Job Status:

For employers with 25 or more employees, employers will generally have an obligation to return any employee who has taken Emergency FMLA to the same or an equivalent position upon work.

Employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists due to an economic downturn or other financial circumstances.

Pay:

The first 10 days of the Emergency FMLA leave can be unpaid, although employees may elect to use accrued vacation, PTO, or sick leave.

After 10 days, full-time employees are paid two-thirds of the regular rate. Employees may use accrued personal or sick leave during the initial 10–day period. Payments are capped at $200 per day, $10,000 in the aggregate.

For part-time employees, time must be paid based on the average number of hours the employee worked for the 6 months prior to taking Emergency FMLA.

Tax Credits:

Employers are entitled to a quarterly refundable tax credit equal to 100% of the qualified FMLA wages paid by the employer.

No Private Cause of Action:

An employee may not bring a civil lawsuit against an employer because of a violation of the Emergency FMLA. Instead, only the Secretary of Labor may enforce the law against employers.

Notices:

The Secretary of Labor will issue a model notice regarding employee rights under the Act in the near future.

Additionally, the Department of Labor has issued a FAQ for the Emergency FMLA leave Act. The FAQ may be found here

New Jersey Law

Governor Murphy signed a number of legislative measures addressing COVID-19 concerns, one of which affords protections to employees who have taken leave in certain circumstances.  Specifically, employers are prohibited from terminating or otherwise penalizing employees who request or take time off from work because an employee has, or is likely to have, an infectious disease, as defined in law, which may infect others at the employee’s workplace.

An employee may not bring a civil lawsuit against an employer because of violation of the New Jersey measure, but the Commissioner of Labor and Workforce Development may initiate an action that can result in reinstatement of the employee and a $2,500 fine for each violation.

SBA loans for Affected Businesses

For businesses that are struggling with cash flow due to the Coronavirus, the Small Business Administration is offering low-interest loans due. More information can be found here.

Unemployment Benefits

For employees who have been laid off as a result of the pandemic, may find information about filing for unemployment here.

Contact a New Jersey Employment Lawyer With Any Coronavirus Relegated Questions

Our employers’ lawyers work with a variety of different businesses in diverse industries. Given that the law is rapidly changing, for further information contact Tony Morgano, Esq., and John Hoffman, Esq.

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