As a result of the COVID-19 pandemic, the federal government passed the Families First Coronavirus Response Act (“FFCRA”) on March 18, 2020. This law includes two Acts providing for paid leave to be enforced by the US Department of Labor’s Wage and Hour Division. They provide great protections for New Jersey employees which should help the economic recovery.
These 2 Acts are the Emergency Family and Medical Leave Expansion Act, and the Emergency Paid Sick Leave Act. While the provisions were initially only supposed to apply from the effective date of April 1, 2020 through December 31, 2020, they may be extended. Much depends on the current standoff between Congress and President Trump.
The Emergency Paid Sick Leave Act applies to all employers with less than 500 employees. No prior employment or employment history with the employer is required for employees to be covered. The Act generally provides for 80 hours (or 2 weeks) of paid sick leave to qualifying employees.
There are 6 Qualifying Reasons that you can use this paid leave
- The employee has been ordered to quarantine or isolate themselves by a Federal, State, or local government entity related to COVID-19. A New Jersey State stay at home order, for instance, would meet this requirement assuming that you are not able to work from home.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order described in # 1 or # 2 above. For instance, the employee is caring for someone else who has been ordered to quarantine by a government entity or has been advised to self-quarantine by a health care provider due to concerns related to Covid-19.
- The employee is caring for a child whose school or place where they receive childcare is closed or otherwise unavailable due to reasons related to COVID-19.
- The last category is that: The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. (This category is somewhat unclear, but it appears that, to date, the US Department of Health and Human Services has not identified any substantially similar conditions which would come under this category.)
How much the employee gets paid under the Families First Coronavirus Response Act, and specifically under the Emergency Paid Sick Leave Act is not always the same. There are two categories of how payments are calculated based on the six specific reasons set forth above for the leave. Leave benefit calculations are generally separated between the first three reasons and the last three enumerated reasons above.
Thus, if the employee has been ordered to quarantine by the government or a healthcare provider, or the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis, the employee is entitled to two weeks of paid leave at her regular rate of pay up to $511 per day.
If the employee is on leave because the employee is caring for someone who has been ordered to quarantine or a child whose school is closed because of Covid-19, or because of other substantially-similar conditions, then the employee is entitled to receive two weeks of paid leave at 2/3rds the employee’s regular rate of pay up to $200 per day.
Then, the Emergency Family and Medical Leave Expansion Act goes on to provide additional assistance for those caring for a child whose school has closed because of Covid-19. Normally, the Family Medical Leave Act (“FMLA”) only applies to larger employers, specifically employers which had 50 or more employees. During the period covered by the Expansion Act, this Act covers all employers with less than 500 employees.
Also, normally, the FMLA does not provide paid leave, it only provided employment protection and health insurance continuation for 12 weeks to care for a seriously ill family member or for the employee’s own illness. Under the Expansion Act, the first 2 weeks of the 12 weeks of job protection is unpaid for everyone because that is covered by the Emergency Paid Sick Leave Act. Then, if the employee needs to be out more than two weeks to care for a child whose school has closed because of Covid-19, the employee may receive an additional 10 weeks of paid leave at 2/3rd the employee’s regular rate of pay up to $200 per day. Unlike the Emergency Paid Sick Leave Act, the employee must have worked at the employer’s for at least 30 days for this pay to be required. This covers all full time, part time, temporary employees, and employees on leave. But does not cover independent contractors or employees who are furloughed or laid off.
These payments are made directly by the employer. However, employers may qualify for reimbursement through tax credits for all qualifying wages paid under the FFCRA as well as to amounts paid or incurred to maintain health insurance coverage.
As with any law, there are going to be some exceptions. The FFCRA has permitted employers the option of excluding Emergency Responders and Health Care Providers. There is also apparently an exemption for employers with less than 50 employees. This allows certain small businesses to qualify with the Secretary of Labor for an exemption from providing leave benefits to those seeking leave to care for a child whose school has closed. That exemption is permitted if the business can illustrate that the leave benefits would jeopardize the viability of the business as a going concern.
However, for those providing the leave, it is important to note that payments under the Emergency Paid Sick Leave Act are in addition to any other previously existing leave available to the employee. So, an employer cannot force an employee to use otherwise available PTO, though the employee has the option to do so. Under the FMLA Expansion Act however, the employer may be able to require the employee to use available “PTO” time.
These are still new provisions which are sure to be further clarified, interpreted, amended, and possibly even extended as issues arise, and of course what happens between President Trump and Congress. The employment attorneys at McLaughlin & Nardi, LLC are experienced New Jersey employment law attorneys, and can advise both employers and employees about their rights and responsibilities under New Jersey employment law requirements and these new federal mandates. To learn more about what we may be able to do to help, please contact us by e-mail or telephone at (973) 890-0004.