March 20, 2020

COVID-19 Employment Guidance

Federal Laws – Effective April 1, 2020:

FMLA Expansion: The expanded Family and Medical Leave Act applies to the following: employees who need to care for their children whose school is closed or their childcare provider is closed. These employees are entitled to up to 12 weeks of leave. The first 10 days of leave is unpaid. The employee can use PTO or Earned Sick Leave for these 10 days. After 10 days, pay is at two-thirds of the employee’s regular pay rate capped at $200 per day with an aggregate cap of $10,000. Part time employees are paid based on the average number of hours the employee worked for six months prior to taking emergency FMLA or if working less than six months, the reasonable expectation of the average number of hours the employee would be schedule to work. Emergency leave is available to any employee who has worked for the Employer for at least 30 days. The reinstatement to work provisions of the FMLA applies to emergency leave taken under the new Act. This provides up to 12 weeks of job protected leave for the employee.

The Federal Paid Sick Leave Act: The Federal Paid Sick Leave Act provides up to 80 hours of paid sick leave for employees and must be used first and cannot be used consecutively with other employer provided leave, such as PTO or paid sick leave. The employee is entitled to federal paid sick leave if one of the following applies:

    1. Leave is required by a federal, state, or local isolation order.
    2. The employee has been advised to self-quarantine.
    3. The employee is sick and seeking a COVID-19 diagnosis.
    4. The employee is caring for someone subject to quarantine.
    5. The employee is caring for a child whose school has closed due to the virus.
    6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Paid sick leave under the Act is paid at the employee’s regular pay rate capped at $511 per day and $5,110 in the aggregate calculated at the employee’s regular pay rate if the leave is taken for one of the first three reasons listed above. If the employee is caring for someone else for reasons 4-6 or has not been officially diagnosed, leave is paid at a cap of $200 per day at two-thirds of the employee’s regular rate. Part time employees are paid based on the average number of hours the employee worked for six months prior to taking emergency FMLA or if working less than six months, the reasonable expectation of the average number of hours the employee would be schedule to work.

Federal Tax Credits: Specifically, employers are entitled to a refundable tax credit equal to 100% of the qualified sick leave wages paid by employers for each calendar quarter in adherence with the Emergency Paid Sick Leave Act. The qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member or child) for up to 10 days per employee in each calendar quarter. Similarly, employers are entitled to a refundable tax credit equal to 100% of the qualified family leave wages paid by employers for each calendar quarter in accordance with the Emergency Family and Medical Leave Expansion Act. The qualified family leave wages are capped at $200 per day for each individual up to $10,000 total per calendar quarter. Only those employers who are required to offer Emergency FMLA and Emergency Paid Sick Leave may receive these credits.

OSHA/HIPPA: OSHA requires Employers to provide a safe workplace. HIPAA requires Employers to treat employee medical information in confidence. If an employee tests positive for the virus, Employers should NOT reveal the employee’s name. At the same time, Employers SHOULD inform other employees who had contact with the impacted employee that they have been exposed, urge them to be tested, require appropriate quarantine, and take the necessary steps to render the worksite safe from further exposure. This may include closing facilities to sanitize the workplace for a period of time.

NJ Laws

The NJDOL has prepared a flow chart of COVID-19 scenarios and the interplay of NJ State Laws including Earned Sick Leave, Temporary Disability, Family Leave Insurance, Workers Comp. and Unemployment: https://www.nj.gov/labor/assets/PDFs/COVID-19%20SCENARIOS.pdf. All of these laws potentially come into play with different COVID-19 scenarios.

The NJ Attorney General issued guidance regarding discrimination and the application of the Law Against Discrimination in employment and COVID-19: https://www.nj.gov/oag/newsreleases20/202020318-NJ_DCR_FAQs_on_COVID-19_Final.pdf.

Important Reminders

Employers should not take any action against employees that could be considered adverse. Employers should encourage managers to contact HR prior to taking any action with regard to employees resulting from COVID-19 and related issues.

Employers should encourage all employees that are exhibiting symptoms to stay home and take advantage of the leave policies above rather than risk infection of the workplace.

Consult with counsel as issues arise prior to taking employment action because guidance is continually changing.

If you have questions about these new laws and related issues, please contact Megan K. Balne at 856.355.2936 or balne@hylandlevin.com.

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