Employers are grappling with a remote workforce and employees who need leaves of absence in connection with Coronavirus Disease 2019 (“COVID-19”). While some employees are able to work from home remotely, others cannot perform work for various different reasons. Some employees simply cannot work remotely, some employees are sick, some have to care for sick family members, and some are in high risk groups and required to self-quarantine.
At the outset, the New Jersey Assembly has passed a bill A3848 on March 16, 2020 as part of New Jersey’s COVID-19 Emergency Response Package, which if passed by the Senate and signed into law by the Governor, would prohibit any employer from terminating or refusing to reinstate any employee who requests and/or takes a leave of absence as required by a medical professional (for a specified period of time) due to the employee’s positive COVID-19 infection or is “likely” to have a COVID-19 infection which could infect others at the workplace.
IS THE LEAVE JOB PROTECTED?
1. Earned Sick Leave Act (ESLA)
ESLA would certainly require that employees be permitted to use up to the forty (40) hours of available sick leave: (1) if they are sick with COVID-19 or required to self-quarantine; (2) if they are caring for a family member who is infected; or (3) because of a workplace or a child’s school closure.
Many employers are relaxing their attendance policies and permitting sick employees to use all available paid time off including, sick time, personal time and vacation time.
Some employers are also advancing or permitting employees to use and exhaust paid time off not yet accrued. In these circumstances, we recommend putting the agreement in writing so that everyone knows what is being advanced and what needs to be re-paid.
2. Family Medical Leave Act (FMLA)
FMLA which currently applies to larger employers with 50 or more employees within a 75-mile radius, provides up to 12 weeks of unpaid leave for eligible employees (those who have worked at least 1,250 hours within the last 12 months). Although the flu ordinarily would not qualify as a “serious health condition” making the employee eligible for FMLA leave, it is extremely likely that complications from COVID-19would qualify where it requires hospitalization and develops into much more serious respiratory illnesses. An employee could be eligible for FMLA for their own serious health condition or to care for a family member with a serious health condition.
The Families First Coronavirus Response Act (H.R. 6201) (FFCRA) was passed by the U.S. House of Representatives on March 14, 2020 and subsequently revised and narrowed by U.S. Senate. The Revised version was signed into law by President Trump in the late hours on March 18, 2020. The Act becomes effective in 15 days (and will expire on December 31, 2020). Here’s what you need to know:
The FFCRA creates the Emergency Family and Medical Leave Expansion Act which amends the FMLA to provide for leave to employees who are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” Additional highlights include:
- Applies to all employers with less than 500 employees. Small businesses with less than 50 employees can be exempt if paid leave (described below) would “jeopardize the viability of the business as a going concern.”
- Includes newer employees who have worked at least 30 calendar days.
- Initially can be unpaid for the first ten days and, during this time, employees may use their available paid time off at their option. Any remaining emergency FMLA leave used for this reason must be paid at 2/3 the employee’s regular rate, up to a cap of $200 per day and $10,000 total.
Employers will be required to distribute a notice (workplace poster) along with a policy. We will provide more information as it becomes available. The DOL is expected to publish this poster within 7 days.
3. New Jersey Family Leave Act (NJFLA)
NJFLA which applies to larger employers with 50 or more employees nationwide, provides up to 12 weeks of unpaid leave for eligible employees (those who have worked at least 1,000 hours within the last 12 months). As explained above regarding the FMLA, although the flu ordinarily would not qualify as a “serious health condition” making the employee eligible for FMLA leave, it is extremely likely that complications from COVID-19 would qualify where it requires hospitalization and develops into much more serious respiratory illnesses. An employee could be eligible for NJFLA to care for a family member with a serious health condition.
4. Americans with Disabilities Act (ADA)
Finally, sick employees with temporary disabilities due to COVID-19 or whose existing disabilities are exacerbated by COVID-19 who are not otherwise entitled to leave under the FMLA or NJFLA could likely be entitled to leave as a reasonable accommodation under the ADA. These types of requests should be supported by medical documentation.
IS THE LEAVE PAID?
Once you have determined whether the employee is entitled to a leave of absence, the next question is whether the leave is paid. A great summary of the different types of New Jersey benefits with a detailed Q&A is available from the Department of Labor and Workforce Development.
1. New Jersey Temporary Disability Insurance (TDI)
New Jersey’s temporary disability insurance benefits could be available for employees who are sick with COVID-19 related illnesses. Employees should be directed to file claims through the normal mechanism through the myleavebenefits.nj.gov website. Claims would need to be supported by health care documentation and employers would be required to verify wage information.
2. New Jersey Family Leave Insurance (FLI)
In similar fashion, family leave insurance benefits could also be available for employees whose family members are sick with COVID-19 related illnesses. Again, employees should be directed to file claims through the normal mechanism in place on the myleavebenefits website. Claims would also need to be supported by documentation from the family member’s health care provider. Employers will receive a request to verify wage information.
3. Federal Emergency Paid Sick Leave Act (EPSL)
The FFCRA also created the “Emergency Paid Sick Leave Act” which requires employers to provide eligible employees with up to 80 hours of paid sick leave. Part-time employees shall also be eligible for an amount of paid sick leave equal to the employee’s average hours over a 2-week period. Employees who are able to work remotely (or telework) shall not be eligible for paid leave. This requirement only applies to employees unable to work or work remotely. Here’s what else you need to know:
There are six main reasons to be entitled to leave under this Act:
- 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 medical diagnosis;
- The employee is caring for an individual who is subject to an order described in (1) and (2) above;
- The employee is caring for the employee’s son or daughter, if the child’s school or child care facility has been closed or the child’s care provider is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor.
Here is some additional information about how this paid leave is calculated:
• With regard to reasons (1), (2) and (3) above, paid leave is capped at $511 per day and $5,110 total.
• With regard to reasons (4), (5) and (6), paid leave is capped at $200 per day and $2,000 total.
All employees are entitled to this paid leave, there is no length of service requirement. Employees are permitted to use available paid time off after obtaining paid leave under this Act. Employers cannot require that available paid time be exhausted prior to obtaining paid leave under this Act.
4. Epidemic and Emergency Relief Employment Fund
New Jersey has also proposed in A3846 a temporary lost wage unemployment program for individuals who do not have fully paid leave and have actually lost wages as a result of COVID-19 due to:
- the individual’s absence from work due to the need to care for a family member;
- the individual’s absence from work due to the illness of the individual;
- the individual’s absence from work due to a school or childcare facility being closed; and
- for such other purposes as determined by the commissioner.
This fund appears to be a catch-all for affected individuals who are not entitled to other benefits as the bill specifically excludes any individual who has received benefits under the unemployment compensation law.
The Bottom Line. The COVID-19 pandemic has been an especially challenging time for employers and employees alike. We are monitoring the legal landscape and will continue to provide updates as they are available.
Bressler’s COVID-19 Task Force will provide clients with the resources required to develop and implement legal and operational policies and procedures, as well as business strategies to help navigate the pandemic and beyond.