COVID-19 Employer Alert

COVID-19 Employer Alert

March 13, 2020

We know employers are monitoring the COVID-19 pandemic closely and are facing unprecedented issues daily about how to address the virus in the workplace. While the situation is developing, the guidance from the CDC suggests that many people will be impacted. Employers are developing and implementing policies and procedures in response to the pandemic concerning health and safety, privacy, remote work, leaves of absence and many others in efforts to protect their employees while continuing to service their customers.

As employers respond to workplace interruptions, it is important to be familiar with the legal obligations to employees who are impacted by the virus. Employers should review their policies relating to paid or unpaid leave, including under the Family and Medical Leave Act (FMLA) and related state leave laws such as New York Paid Family Leave, and California Paid Family Leave. Requests for leave or other accommodations related to COVID-19 may trigger obligations under federal and state discrimination laws, including the Americans with Disabilities Act (ADA) and Title VII. As you navigate these issues, a few helpful reminders:

  • Employees may qualify for FMLA or related state leave if they become sick with COVID-19 and may qualify for FMLA or Paid Family Leave if they need to care for a family member who is infected. Short-term disability and worker’s compensation benefits may also be available to employees who are too sick to work.
  • For those with employees in New York City, New York City’s Earned Sick Time law permits employees to use sick leave when the workplace has been closed due to a public health emergency or to care for a child whose school or childcare provider is closed due to a public health emergency. Similarly, California employers with 25 or more employees in a single location are required to permit employees to take time up to 40 hours per year to address a school or childcare emergency due to closures.
  • Employers should consider implementing policies to minimize exposure in the workplace, including by requiring that employees who may have been exposed to COVID-19 self-quarantine or sending home employees who appear to have a fever or acute respiratory illness symptoms (i.e., cough, shortness of breath). However, any such policies must be drafted carefully and implemented in a non-discriminatory manner.
  • Employers are also encouraged to monitor the Centers for Disease Control (CDC) as well as their state and local government authorities for the latest updates. The CDC has prepared an Interim Guidance for Businesses and Employers. The Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces federal laws concerning workplace discrimination, has provided guidance to businesses and employers preparing for and responding to the Coronavirus disease, EEOC Pandemic Preparedness Guidance. In addition, the Occupational Safety and Health Administration (OSHA) has provided Guidance on Preparing Workplaces for COVID19.
  • If you need to shut down operations temporarily because of COVID-19, the resulting layoff may be a WARN event. We think that the “unforeseen business circumstances” exception to the 60-day notice requirement may apply, but employers should review the WARN Act and state counterparts if they are considering a layoff or closing related to COVID-19.

Families First Coronavirus Response Act: Paid Sick Leave and Expanded FMLA Leave

Families First Coronavirus Response Act: Paid Sick Leave and Expanded FMLA Leave 

March 19, 2020

The U.S. Senate approved new legislation in response to COVID-19, which was signed by the President last night, and will be effective no later than 15 days after signing. The bill, called the Families First Coronavirus Response Act, includes, among other relief, the temporary requirement that employers with fewer than 500 employees provide two weeks of paid sick leave as well as 12 weeks of partially-paid FMLA leave to employees impacted by the virus. The bill includes tax credits for employers providing such benefits. The key provisions of the bill are highlighted below.

Emergency Family and Medical Leave Act 

The Federal Family and Medical Leave Act has been temporarily expanded. All employees who have been on the payroll for at least 30 days and work for employers with fewer than 500 employees will be eligible to use up to 12 weeks of job-protected leave if such employees are unable to work (or telework) due to the need to care for a child if a school or childcare provider facility is closed or otherwise unavailable to work due to COVID-19. The first 10 days will be unpaid, but employees can opt to use accrued vacation, sick time, or other PTO during that time, including the new Federal Emergency, Paid Sick Leave if they meet the eligibility requirements (described below). After the first 10 days, the employer is required to pay subsequent weeks at a rate no less than 2/3 of the employee’s usual rate of pay, capped at $200 per day, and $10,000 in the aggregate for the entirety of the leave period. The expansion of benefits will be applicable through December 31, 2020.

Federal Emergency Paid Sick Leave 

Employers with fewer than 500 employees will be required to temporarily provide two weeks (80 hours) of paid sick leave to employees who are:

  • subject to a federal, state or local order to quarantine or self-isolate, or caring for an individual subject to such order;
  • advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, or caring for an individual due to similar reasons;
  • experiencing symptoms of COVID-19 and seeking a medical diagnosis; or
  • caring for a son or daughter if the school or place of care has been closed, or childcare provider is unavailable due to COVID-19 precautions.

Sick leave pay is capped at $511 per day ($5,110 in the aggregate) for those under quarantine or isolation order, advisement to self-quarantine and/or experiencing symptoms and seeking a COVID-19 diagnosis, and capped at $200 per day ($2,000 in the aggregate) for those caring for others impacted by a quarantine, isolation order or advisement by a healthcare provider to self-quarantine, and/or school/childcare facility closing. Part-time employees are similarly entitled to sick leave for the number of hours the part-time employee works in a typical two-week period. The paid sick leave is required regardless of how long an employee has been employed by the employer, and the employer may not require the employee to utilize other types of paid leave provided by the employer before using this sick leave. The requirement to provide such sick leave will expire on December 31, 2020.

Employer Tax Credits: Sick Leave and FMLA Expansion 

Employer tax credits are being provided to offset costs of providing emergency sick leave and paid FMLA benefits, allowing companies to recoup some of their costs.

Expands Unemployment Benefits 

Unemployment benefits eligibility requirements are temporarily being eased under the legislation for newly unemployed employees, including the waiting period. The federal government is also providing additional funds to states’ unemployment trust funds to cover expected increases in unemployment benefits being issued.

Notice

Within seven days of passage of the legislation, the Department of Labor will issue a written notice of the pertinent points of the new legislation, which employers must post in the workplace. Because many employees are currently telecommuting due to the pandemic, we recommend also providing the notice to employees via email or other means of communication to ensure compliance.

 

New Rules For New York State Employers Due To COVID-19

New Rules For New York State Employers Due To COVID-19

March 19, 2020

Amid the COVID-19 pandemic, Governor Cuomo is moving swiftly to provide protections and leave for New York employees.   On March 18, 2020, Governor Cuomo signed an executive order, effective Friday, March 20, 2020, at 8:00 pm, requiring businesses to implement Work From Home policies and those businesses that rely on in-office personnel to reduce their in-office workforces by 50 percent. Certain essential businesses are exempt.

He also signed legislation giving New York State employees job-protected sick leave. The bill provides that employers must immediately provide job-protected leave for their employees who cannot go to work because they are subject to mandatory or precautionary orders to quarantine. The scope of the obligations depends on employer size as of January 1, 2020, and 2019 net income:

  • Employers with 10 or Fewer Employees:
    • Employees subject to mandatory or precautionary quarantine orders are allowed unpaid sick leave until the termination of any mandatory or precautionary order is lifted.
      Such employees are immediately eligible to elect Paid Family Leave (“PFL”) due to disability, the definition of which has been amended to include “any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her” as a result of a mandatory or precautionary quarantine order issued by the government.
  • Employers with 10 or Fewer Employees with a Net Income Greater Than $1 Million in 2019 and Employers with Between 11 and 99 Employees:
    • Employees subject to mandatory or precautionary quarantine orders are allowed at least 5 days of paid leave and unpaid sick leave until the termination of any mandatory or precautionary order.
    • After the 5 days of paid leave are exhausted, the employees can elect to take PFL.
  • Employers with 100 or more Employees:
    • Employees subject to mandatory or precautionary quarantine orders are allowed at least 14 days of paid leave and unpaid sick leave until the termination of any mandatory or precautionary order.

The bill also provides that employees can take PFL for purposes of caring for a minor dependent child who is subject to a mandatory or precautionary quarantine order.

For employers whose workplaces have been closed due to COVID-19 but who would otherwise be subject to the leave bill, the waiting period for any affected employee’s claim for unemployment benefits is waived.

Importantly, the bill requires that any employee returning from leave, whether paid or unpaid, be restored to their previous position, with the same pay and other terms and conditions of employment.

There are two significant exceptions to the requirement to provide leave to employees impacted by mandatory or precautionary quarantine orders. First, if employees are physically capable of working remotely (i.e., they are not actually sick) and the employer provides them with that opportunity, the employees do not have to be provided unpaid or paid leave. Second, an employee who knowingly travels to a country for which the CDC has issued a Level 2 or Level 3 health warning, and does so not at the direction of the employer and after being advised of the health warning, shall not be entitled to the paid leave provided for in the bill. However, such employees must be allowed to use any accrued leave followed by unpaid leave.

The bill anticipated the passage of the federal Families First Coronavirus Act, or other federal laws, which also provide for paid and unpaid leave and job protection for certain employees due to the COVID-19 pandemic. The New York bill provides that the benefits required under the New York law are not available to those who qualify for federal benefits except to the extent the New York benefits exceed what is provided for under the federal law.

COVID-19 New Jersey Employer Alert

 COVID-19 New Jersey Employer Alert

March 23, 2020

On March 21, 2020, New Jersey Governor Phil Murphy signed an Executive Order and other legislation that have significant implications for New Jersey employers.

First, Governor Murphy signed an executive order (Executive Order No. 107) requiring New Jersey residents to remain at their place of residence subject to limited exceptions.  The order, which went into effect Saturday, March 21, 2020, at 9:00 p.m., provides:

  • All non-essential retail businesses must indefinitely close all storefront and/or brick-and-mortar premises and operations.  Essential businesses are defined in the Executive Order and include grocery stores, pharmacies, medical supply stores, and gas stations. 
  • All businesses are required to utilize telework or work-from-home arrangements wherever practicable.  To the extent business has employees that cannot perform their functions via telework or work-from-home arrangements, the business should make its best efforts to reduce staff on-site to the minimum number necessary to ensure that essential operations can continue. This exception is very limited, and the Executive Order lists the employees that fall into this category as including cashiers or store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, IT maintenance workers, janitorial and custodial staff, and certain administrative staff. 
  • As explained in the FAQs posted by the Governor’s office, all manufacturing, industrial operations, logistics, ports, heavy construction, shipping, food production, food delivery, and other commercial operations may continue operating, but they should limit on-site employees to the minimal number to ensure that essential operations can continue.

Employees reporting to work under the limited exceptions above are permitted to travel to and from their place of business, and employers are encouraged to give each employee a letter indicating that the employee works in an industry permitted to continue operations. 

These new restrictions imposed by Executive Order 107 may impact an employer’s ability to maintain all staff.  For employers who implement large-scale layoffs, the federal and New Jersey WARN acts may be implicated.  Employers are reminded that effective July 19, 2020, an amended and more restrictive New Jersey WARN Act goes into effect. The analysis of whether WARN Act notifications are required is fact-specific and varies dependent on particular circumstances.  Should employers have questions regarding these obligations, we recommend they contact counsel.

Anti-Discrimination/Anti-Retaliation Protection Legislation Signed by the Governor

Second, the Governor signed legislation (A.B. 3848) aimed at addressing potential discrimination and retaliation against employees in relation to the COVID-19 pandemic. Under the new law, an employer shall not, during the current public health emergency declared by the Governor concerning COVID-19, terminate or otherwise penalize an employee if the employee requests or takes time off from work based on the written (or electronically transmitted) recommendation of a New Jersey medical professional that the employee take that time off for a specified period of time because the employee has, or is likely to have, an infectious disease, which may infect others at the employee’s workplace.  The employer is required to reinstate the employee to employment in the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment. 

If an employer is believed to have violated the above provisions, the employee may either file a complaint with the Commissioner of Labor and Workforce Development or may initiate a court action.  If a violation is found by the Commissioner, it will order reinstatement of the employee and fine the employer $2,500 for each violation.

Proposed Temporary Lost Wage Unemployment Program

There is proposed legislation in New Jersey (A-3846, known as the “Temporary Lost Wage Unemployment Program”) which would allow individuals and employers in New Jersey to recoup actual lost wages from work absences due to the COVID-19 pandemic.  First, the legislation establishes a fund to compensate workers at their average weekly rate from the past calendar year for the following:  (1) the individual’s absence from work due to the need to care for a family member; (2) the individual’s absence from work due to the illness of the individual; (3) the individual’s absence from work due to school or childcare facility being closed; and (4) for such other purposes as determined by the commissioner.  To claim benefits for actual lost wages, the employee would have to submit an application to the New Jersey Department of Labor and certify “that the individual does not have fully paid leave available for the individual’s absence.”

In addition, there is a separate program proposed under the legislation for employers.  Under this proposed program, employers can seek reimbursement for the specific purpose of paying wages to workers who are ordered under quarantine by a licensed healthcare practitioner as a result of the COVID-19 pandemic.