COVID-19 Alerts

The United States Department of Labor (“DOL”) answered some key questions regarding the Families First Coronavirus Response Act, H.R. 6201 (“FFCRA”), which we covered in an earlier post here.  While the DOL’s Q&As address many questions raised by the FFCRA, additional updates may be forthcoming, and we will continue to monitor further guidance issued by the DOL.

Below are some of the most pertinent highlights:

• The Small Business Exemption

Businesses with fewer than 50 employers may seek an exemption from the FFCRA requirement to provide expanded family and medical leave due to school or day care closures or child care provider unavailability for COVID-19 related reasons if an authorized officer of the business can establish one of the following: (1) the financial obligation of providing leave would exceed available business revenues and cause the business to cease operating at a minimal capacity; (2) the loss of the employee’s specialized skill, knowledge or responsibilities would result in a substantial risk to the business’s financial health or operational capabilities; or (3) there are insufficient workers available to assume the responsibilities in order for the business to operate at minimal capacity.

A business must document why it believes it meets the exemption criteria but should not send any documentation to the DOL at this time. Further information on the exemption and how it will be applied is expected in the DOL’s forthcoming regulations.

• Documentation for FFCRA Paid Sick Leave and Extended Family and Medical Leave

Employers may require employees to provide documentation to receive paid sick leave or expanded family and medical leave under the FFCRA.  These records can include either a published quarantine order or a doctor’s note prescribing self-quarantine.  Employees who seek family leave because their child’s school or daycare is closed, or who seek to take leave for another existing qualifying reason under the Family and Medical Leave Act (FMLA),  must provide the medical certifications required under the FMLA. Employees taking leave for childcare should provide written notice of school or daycare closure, such as an announcement from the school or news article. Employers who seek reimbursement for the costs of leave provided under the FFCRA through refundable tax credits must retain this information and may need to file it with the IRS when seeking the tax credit.

• Intermittent FFCRA Leave

An employee may take FFCRA leave intermittently while teleworking, if the employer allows it.  While teleworking, an employee may take intermittent leave in any increment, provided the employer agrees.  For an employee who is working at his or her usual job site, paid sick leave must be taken in full-day increments and can only be taken intermittently to care for a child whose school or day care is closed due to COVID-19, if the employer agrees. Employees who are not teleworking may take intermittent paid family leave under the FFCRA, but only with the employer’s permission.

• FFCRA Leave Unavailable If/When a Workplace Shuts Down

Paid leave time is not available if an employer furloughs an employee or shuts down, whether temporarily or permanently, and stops paying the employee. If an employee was receiving paid leave before the furlough or closure, the employee is no longer entitled to paid leave as of the date of furlough or closure.  If an employer reduces an employee’s scheduled work hours, the employee cannot use FFCRA leave for the hours he or she is no longer scheduled to work. Employees may seek unemployment insurance under these circumstances.

• FFCRA Leave Is Provided in Addition to Other Available Paid Leave

Employers cannot require employees to utilize employer-provided paid time off prior to taking FFCRA leave. Employees must choose to utilize either FFCRA leave or employer-provided paid time off (i.e. vacation and sick days) and may not use both leaves simultaneously unless the employer and employee both agree. If an employer permits an employee to take both leaves simultaneously to supplement his or her income, the employer may only claim a tax credit for the cost of the FFCRA portion of the leave.

• FMLA and EFMLEA Can Only be Used for a Combined Total of 12 Weeks in 12-month Period

If an employee has previously taken FMLA leave, he or she can also receive paid leave under the Emergency Family Medical Leave Expansion Act (“EFMLEA”), however, the combined total leave cannot exceed 12 weeks in a 12-month period of time.  Once the 12 weeks have been exhausted, whether used entirely under FMLA, or under the EFMLEA or a combination of the two, no additional leave is available.

For further information about these or other issues arising out of the COVID-19 crisis, please contact Caitlin Cascino at ccascino@walsh.law or (973) 757-1024 or Mariel Belanger at mbelanger@walsh.law or (973) 757-1039.

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

Walsh attorney Caitlin P. Cascino is offering businesses some clarity around COVID-19’s fast-moving workplace regulations at a webinar tomorrow, 3/31/20 at 12 noon CDT, hosted by the International Association of Defense Counsel (IADC). Join us for A Pointed Labor and Employment Discussion Regarding COVID-19 and Groundbreaking Laws as the panel discusses the FFCRA, family leave, paid sick leave, and the economic stimulus package.

With Caitlin on the panel are Robert A. Luskin of Goodman McGuffey LLP in Atlanta, and Bonnie Mayfield of Dykema Gossett PLLC in Bloomfield Hills, Michigan. Second in a series covering different aspects of COVID-19’s impact, the webinar is free but registration is required. Sign up here.

On March 25, 2020, Governor Phil Murphy signed into law S2304, a bill intended to broaden the availability of access to benefits under the state’s Temporary Disability Insurance (“TDI”) and Family Leave Insurance (“FLI”) programs.  The law targets epidemic-related illnesses such as COVID-19 and makes a number of changes to the existing statutory scheme for state-issued disability insurance benefits, family leave insurance benefits, and use of accrued paid sick time.  The law went into effect immediately.

S2304 expands the definition of “serious health condition” for which an employee may obtain benefits for his own condition (TDI) or for the condition of a family member for whom the employees provides care (FLI).  “Serious health condition” now includes, during a state of emergency, an illness caused by an epidemic of a communicable disease, a known or suspected exposure to such a disease, or efforts to prevent the spread of that disease, which requires in-home care or treatment of the employee or a family member due to an order from a public health authority or healthcare provider.  The new law eliminates the current one-week waiting period for disability benefits in cases related to an epidemic.

The new law also expands New Jersey’s earned sick leave law to permit the use of paid sick time during a declared state of emergency.  Earned sick leave may now be used where the employee is unable to work because, during a declared state of emergency, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by a healthcare provider or public authority that the presence of the employee or family member in the community would jeopardize the health of others.

While an employer generally may deny an employee earned sick leave in certain situations – specifically, where (1) the employee is salaried and among the top 5% highest paid employees, or one of the seven highest paid employees; (2) denial is necessary to “prevent substantial and grievous economic injury” to the employer; and (3) the employer provides notice of its intent to deny leave – under this new law, this section is inapplicable where the leave sought is due to an order that the employee or the employee’s family member remain isolated or quarantined at the direction of a health care provider, the Commissioner of Health, or other authorized official.  Further, the section does not apply where a “place of care” of the employee’s family member is closed due to a declaration of a state of emergency or other order during an epidemic or exposure, or suspected exposure, to a communicable disease.

For further information about these or other issues arising out of the COVID-19 crisis, please contact Tricia O’Reilly at toreilly@walsh.law or (973)757-1104, M. Trevor Lyons at mlyons@walsh.law or (973)757-1014 and Caitlin Cascino at ccascino@walsh.law or (973)757-1024.

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

On March 24, 2020, the U.S. Department of Labor (DOL) began issuing implementing regulations for the Families First Coronavirus Response Act (FFCRA).  The first set of regulations state that the effective date of the FFCRA is April 1, 2020, not April 2, 2020 as originally anticipated.

The regulations note that the small business exemption criteria will be addressed in forthcoming regulations.  They do, however, provide guidance as to determining if a business is under the 500-employee threshold for coverage, stating that the number encompasses full-time and part-time employees within the United States, including those on leave, temporary employees, and day laborers supplied by a temporary agency.  The Fair Labor Standards Act (FLSA) joint employer rule and Family and Medical Leave Act (FMLA) integrated employer test both apply.

On the calculation of hours worked by part-time employees, the regulations note that part-time employees are entitled to leave based upon their average number of work hours in a two-week period.  If the average is unknown or the employee’s schedule varies, employers are directed to use a six-month average, or for employees who have been working for less than six months, the number of hours the employer and employee agreed that the employee would work upon hiring.

The DOL regulations clarify that if an employee is taking paid sick leave and unable to work or telework because he (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19, (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or (3) is experiencing symptoms of COVID-19 and is seeking medical diagnosis, the employee is entitled to two weeks of leave at his regular rate of pay up to $511 per day or $5,110 total.

If an employee is taking paid sick leave and is unable to work or telework because he is (1) caring for an individual who is quarantined as a result of a federal, state, or local quarantine or isolation order or under the advice of a health care provider, (2) caring for his child whose school or childcare is closed due to COVID-19 related reasons, or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, the employee is entitled to two weeks of leave and compensation at 2/3 of his regular rate of pay, up to $200 per day or $2,000 over the two-week period.

An employee who is caring for a child whose school or childcare is closed due to COVID-19 related reasons is permitted to take paid sick leave for the first ten-day period, then paid family leave for the following ten weeks, and the employee will be paid at a rate of 2/3 of his regular rate of pay up to $200 per day or $12,000 for the twelve weeks (encompassing both the paid sick leave and family leave).

Employees taking leave are paid at their regular rate of pay, which is calculated based on the average regular rate over a period of up to six months prior to the date of leave.  Commissions, tips, and piece rates are incorporated into the regular rate.

The regulations clarify that employees are limited to the leave totals in the FFCRA for any combination of qualifying reasons.  Further, while the FFCRA provides for an expansion of the Family and Medical Leave Act (FMLA), the only type of family and medical leave that is paid under the FMLA is leave that qualifies under the FFCRA.

U.S. Department of Labor Issues Required Posters for the Families First Coronavirus Response Act

On March 25, 2020, the DOL issued posters relating to the FFCRA.  The DOL included one poster for private employers and a second poster aimed at federal employees.

The DOL issued accompanying frequently asked questions.  The note that each covered employer must post the notice in a conspicuous place on its premises.  An employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting it on an employee information internal or external website.

All employers who are covered by the FFCRA, including small business owners, are required to post the notice.  If employees report to office headquarters then go to different worksite locations, the FAQs provide that it is not necessary to display the notice at different worksite locations as long as employees are able to see the poster at the main office.  Where employees report directly to different worksite locations or buildings and not to a main office building, though, the employer must post the notices in each building.

For further information about the FFCRA, its implementing regulations, or other issues arising out of the COVID-19 crisis, please contact Tricia O’Reilly at toreilly@walsh.law or (973)757-1104, M. Trevor Lyons at mlyons@walsh.law or (973)757-1014 and Caitlin Cascino at ccascino@walsh.law or (973)757-1024.

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

On the evening of March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act, H.R. 6201.  The new law includes the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which provides paid family leave, and the Emergency Paid Sick Leave Act (“EPSLA”), which provides paid sick leave, for certain employees affected by COVID-19.  Covered employers are eligible for refundable tax credits for offering this emergency family and/or paid sick leave.

• Family Leave

The EFMLEA is an expansion of the existing Family and Medical Leave Act (“FMLA”), with modified definitions and benefits that apply to COVID-19 related leave. While the FMLA applies to employers with 50 or more employees, the EFMLEA applies to companies with less than 500 employees, so a greater number of employees may receive the EFMLEA benefits.

Employees may be eligible for twelve weeks of paid family leave if they cannot work or telework because they need to care for their minor child whose school or child care service is closed or unavailable due to a COVID-19 related public health emergency.  While the first 10 days of leave may consist of unpaid leave, or may be paid through an employer-sponsored paid time off benefit, leave after those 10 days will be paid at a rate of 2/3 of the employee’s regular pay up to $200 per day and $10,000 total for up to 12 weeks.

The EFMLEA also only requires that an employee have been employed by the employer for at least (30) thirty days, instead of the FMLA’s twelve months and 1,250 hour requirement. Employees who are health care providers or emergency responders may be excluded by their employers from EFMLEA protection.

It appears that the FMLA modifications for employer coverage (500 employees or less) and employee eligibility (employed for 30 days) only apply to leave under the EFMLEA, meaning leave to care for a minor child whose school or child care service is closed or unavailable due to a COVID-19 related public health emergency.  The remainder of the FMLA provisions appear to be only applicable to employers with 50 or more employees and to employees who have worked for an employer for twelve months and 1,250 hours, and FMLA benefits for non-COVID-19 related leave remains available to eligible employees.

• Sick Leave

The EPSLA provides employees with paid sick leave for COVID-19 related issues.  It applies to all employers with less than 500 employees.

The EPSLA provides that an employee may be eligible for paid sick leave if he or she is unable to work or telework because:  the employee is subject to a federal, state, or local quarantine or isolation order, the employee has been advised by a health care provider to self-quarantine, the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis, the employee is caring for an individual who is subject to quarantine or isolation, or the employee is caring for a child whose school or child care has been closed or is unavailable.

Full-time employees are entitled to 80 hours of paid sick time, while part-time employees may receive pay for the number of hours the employee works, on average, over a two-week period. Employees may receive up to $511 per day and $5,110 in total of paid sick time if the leave is a result of their own illness, or 2/3 of the employee’s regular pay if the leave is a result of caring for a family member. Employers may not require an employee to use other paid time off benefits before using this paid sick time, and the EPSLA sick leave is in addition to any paid time off benefits that are already provided by a company.

• Regulations  

The Secretary of Labor has the authority to issue regulations excluding certain health care providers and emergency responders and exempting small businesses with fewer than 50 employees when the imposition of these benefits would jeopardize the viability of the business as a going concern.

• Effectiveness  

The Families First Coronavirus Response Act goes into effect on April 2, 2020. These benefits are scheduled to expire at the end of 2020.

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.