Families First Coronavirus Response Act (H.R. 6201)
The bill was approved by the Senate in a 90-8 vote yesterday and signed into law last night by President Trump. The law will be in effect as of April 2, 2020 and will expire on December 31, 2020. This law temporarily amends and adds significant enhancements to the Family and Medical Leave Act (FMLA) of 1993, as well as adding Emergency Paid Sick Leave for those affected by COVID-19. Of note:
Emergency Family and Medical Leave Act
Employers with fewer than 500 employees must provide up to 12 weeks of job-protected FMLA leave to employees who have been on payroll for at least 30 calendar days – this leave is for a “qualifying need related to a public health emergency” which is limited to when an employee is unable to work (or telework) because their minor child’s school or child care service is closed due to a public health emergency.
The first 10 days of this leave can be unpaid, or an employee may opt to substitute accrued vacation, personal, or sick leave during this time (employers may not require an employee to do so).
Thereafter, the remaining 10 weeks must be paid, generally at two-thirds of the employee’s regular rate for the number of hours the employee would otherwise be scheduled to work. The benefit is capped at $200 per day (or $10,000 total).
In general, this leave is job-protected as with other qualifying events under FMLA.
Emergency Paid Sick Leave
Employers with fewer than 500 employees are required to provide paid sick time to an employee who is unable to work (or telework) because of a quarantine or isolation order (federal, state, or local order or advisement of a health care provider); the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; the employee is caring for a relative who is quarantined or isolated; or, their child’s school or child care service is closed because of COVID-19.
Employees are eligible for this provision from day one of employment. Employees are entitled to 80 hours of paid sick time (for part-time employees, they would be entitled to the typical number of hours they are schedule to work in a two-week period).
This benefit is capped at $511 per day for an employee’s own care and $200 per day when the employee is caring for a relative or child (including school closures).
Employers may not retaliate against any employee who takes this leave.
Only employers who are required to offer emergency FMLA or paid sick leave can receive refundable tax credits.
New Jersey’s Earned Sick leave Law covers public health emergencies and employees can use the leave if their workplace or child’s school or daycare is closed due to an epidemic or there is a need for quarantine.
Employees who have tested positive for COVID-19 or have symptoms of COVID-19 can use their Earned Sick Leave and if that has been exhausted (and the employee still cannot return to work), may then apply for Temporary Disability Insurance (TDI).
Employees who are caring for a relative or loved one with the coronavirus or symptoms of COVID-19 can use their Earned Sick Leave and if that has been exhausted (and the employee still cannot return to work), may then apply for Family Leave Insurance (FLI).
Emergency Paid Sick Leave legislation (Senate Bill S8090) has passed in the State Senate which will cover employees impacted by COVID-19 quarantine or isolation orders. The bill was signed into law last night by Governor Cuomo. Employers with 100 or more employees must provide workers at least two weeks of paid sick leave should they be quarantined due to COVID-19. Employers with fewer than 100 employees, as well as employers with ten or fewer employees and a net income of greater than $1 million in the previous tax year, must provide at least five days of paid sick leave, followed by unpaid leave until the end of quarantine. Employers with ten or fewer employees and net annual income less than $1 million in the last tax year must only provide unpaid sick leave until the end of quarantine.
Additionally, employees of employers with fewer than 100 employees may file for both temporary disability insurance (TDI) and Paid Family Leave (PFL) benefits (simultaneously) following the five days of required sick pay, for employers with more than 10 employees, through the remaining duration of the quarantine/isolation order. Eligible employees can receive up to 100% of combined PFL and TDI benefits up to a maximum of $2,043.92 a week. For employees filing simultaneously for PFL and TDI benefits, the TDI 7-day waiting period will be waived.
Employees who require leave to provide care for a minor dependent child who is subject to quarantine or isolation due to COVID-19 will be eligible only for emergency PFL benefits (not TDI benefits).
Emergency sick leave will be available immediately once signed into law, regardless of how long an employee has been with the employer. All covered employees are protected against retaliation and are entitled to return to their jobs following leave.
Effective March 10, 2020, for COVID-19 related claims, the seven-day minimum period that claimants must be off work to qualify for Temporary Disability Insurance (TDI) and Temporary Caregiver Insurance (TCI) benefits has been waived. For individuals under quarantine the Department of Labor and Training (DLT) will waive the required medical certification, and instead will allow them to temporary qualify via self-attestation that they were under quarantine due to COVID-19.