Introduction
Generally, the Family Medical Leave Act (FMLA) entitles eligible employees of employers that employ 50 or more employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 weeks of unpaid leave within a 12-month period for, among other reasons the birth of a child and to care for the newborn child within one year of birth; to care for the employee’s spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to perform the essential functions of his or her job; and for certain military related reasons.
The Emergency Family and Medical Leave Expansion Act amends the FMLA to apply to employers with fewer than 500 employees and allows 12 weeks of FMLA leave for use by employees who have been employed for 30 days. The first two weeks can be unpaid, although employees may elect to use other paid benefits to cover it. The remaining time must be paid at 2/3 the employee’s regular rate. The usual FMLA requirements that the employee must been employed for a year, worked for 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius would not apply.
Emergency Family and Medical Leave Expansion Act
Covered Employers
Applies to employers that employ fewer than 500 employees and public employers regardless of size.
Eligible Employees
Full- and part-time employees who have been employed for at least 30 calendar days.
Public Health Emergency Leave
The employee is unable to work, including telework, to care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a coronavirus.
A “child” is a biological child, adopted child, foster child, stepchild, legal ward, or child of a person standing in loco parentis under 18 years of age.
A childcare provider is a provider who receives compensation for providing child care services on a regular basis.
Notice to Employer
In any case where the necessity for leave is foreseeable, an employee shall provide the employer with such notice that is practicable.
Pay During Leave
First 10 days
The first 10 days of leave may be unpaid, but an employee can choose to substitute accrued vacation leave, personal leave, or other medical or sick leave during the leave. The employer cannot force an employee to use their accrued paid leave.
Note: Employees may request the use of earned sick pay under New Jersey law.
After the first 10 days
After 10 days of unpaid leave, employers must pay FMLA leave only for the reason above related to COVID-19 at not less than two-thirds the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled.
In no event shall paid leave exceed $200 per day and $10,000 in aggregate.
Varied Schedules
In the case of an employee whose schedule varies from week to week, to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if the employee had not taken leave, the employer can use a number equal to the average number of hours that the employee was scheduled to work over a 6-month period, ending on the date on which the employee takes such leave.
If the employee did not work over such a period, the reasonable expectations of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
Continuation of Health Insurance
As with any FMLA leave, during a leave of absence the group health insurance coverage, if any, which the employee and his dependents had when the leave commenced shall be continued in force (subject to certain conditions). Typically, the employer may require the employee's contributions to be made to the employer directly or to the insurance carrier, and at times consistent with practice or as agreed upon, except that prepayment may not be required without the employee's consent. The employee must be informed in advance and in writing of the terms and conditions under which his payments will be made.
Restoration to Position
Under the FMLA, the employee’s leave is job-protected, meaning an employer must return the employee to the same or equivalent position upon their return to work absent special circumstances.
Employers with fewer than 25 employees
There is no right to job restoration if the employee’s position does not exist after FMLA leave due to an economic downturn or other operating conditions that affect employment caused by a public health emergency during the period of leave. However, the employer must make reasonable attempts to return the employee to an equivalent position, and is required to make good efforts to contact a displaced employee for up to a year after they are displaced.
Penalties
Complaints of violation may be filed by aggrieved individuals in either federal or state court, or with the Wage-Hour Division of the U.S. Department of Labor, although employers with fewer than 50 employees within a 75-mile radius are exempt from civil FMLA damages in an FMLA lawsuit.
Effective Date
The law is takes effect on April 1, 2020; sunsets on December 31, 2020.
Emergency Paid Sick Leave Act
Covered Employers
Applies to employers that employ fewer than 500 employees, and public employers regardless of size.
Eligible Employees
Full- and part-time employees, regardless of how long the employee has been employed.
Reasons for Sick Leave
An employee who is unable to work (or telework) may take sick leave for the following reasons:
1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. the employee is caring for an individual subject or advised to quarantine or isolation;
5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Sick Time Pay
Employees are entitled to 80 hours of paid sick time, based on their regular rate of pay (or, for workers who work less than full time, the typical number of hours they are scheduled to work in a two-week period).
Where an employee takes leave for reasons (1), (2) and (3) above (generally, an employee’s own illness or quarantine), employee is entitled to 100% of their pay, capped at $511 per day ($5,110 in the aggregate).
Where leave is taken for reasons (4), (5), or (6) (care for others or school closures), employee is entitled to 2/3rds of their pay, capped at $200 per day ($2,000 in the aggregate).
Any paid leave provided before the law is enacted cannot be credited against the employee’s paid leave entitlement.
Hours need not be carried over after December 31, 2020 and an employee’s right to take paid sick leave ends after they return from their leave.
Employers with Existing Sick Leave Policies
An employer and cannot require an employee to use other paid leave provided by the employer before the use of paid sick time. Note: EANJ reads this as including earned sick leave under state law.
An employer cannot change its existing sick leave policy to avoid compliance.
An employer can not require an employee to search for a replacement. Or to cover hours during the use of paid sick time.
After the first workday (or portion thereof) an employee receives sick pay, an employer can require an employee to follow reasonable notice provisions.
Worker Protections
An employer cannot retaliate against an employee for using paid sick time and a violation of the law is treated as a violation of the Fair Labor Standards Act for imposition of penalties.
Written Notice to Employees
Employers are required to post a model notice provided by the U.S. Department of Labor
Effective Date
No later than 15 days after the law is enacted; sunsets on December 31, 2020.
Exemption for Small Businesses
An employer with fewer than 50 employees (small business) is exempt from providing Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA) when the requirements of those laws would jeopardize the viability of the business as a going concern. A small business is entitled to the exemption if an authorized officer of the business has determined that:
(i) The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
(ii) The absence of the Employee or Employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
(iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.
To elect the small business exemption, the Employer must document that a determination has been made pursuant to the criteria set forth above. The Employer should not send such documentation to the Department, but rather retain the records in its files. Regardless of whether a small Employer chooses to exempt one or more Employees, the Employer is still required to post notice of the law. Enforcement will be delayed for 30-days with good faith compliance.
Tax Credits for Emergency Paid Sick Leave and Family and Medical Leave
Employers should consult their accountants on the following.
Refundable tax credits are available to employers who are required to provide the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave described above. These tax credits are allowed against the employer portion of Social Security taxes. While this limits application of the tax credit, employers will be reimbursed if their costs for qualified sick leave or qualified family leave wages exceed the taxes they would owe.