Articles and Information
COVID-19
Emergency FMLA Act
• adds a new category of leave eligibility FMLA, which states when an employee is unable to work because of school closures or the unavailability of childcare due to the COVID-19 crisis. paid child care leave is available only when the employer has work for the employee and the employee is unable to perform that work due the need to care for a child due to a school closure or because the employee’s regular child care provider is unavailable due to COVID-19 related reasons.
Source:
https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
Childcare FML paid leave after the first 10 days
• rate of pay should be calculated by multiplying the number of hours the employee would normally be scheduled to work each week by an amount that is “not less than two-thirds of an employee’s regular rate of pay.
• An employer will not be required to pay an employee more than $200 per day or $10,000 total
Source:
https://www.dol.gov/newsroom/releases/osec/osec20200320
Sick Leave Act- Qualifying Reasons
• requires employers to provide 80 hours of paid sick leave emergency paid sick leave to employees who are unable to work because
• The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
• The employee has been advised by their healthcare provider to self-quarantine because they are infected with or have been exposed to COVID-19 or because they are at high risk of complications from COVID-19;
• The employee is showing symptoms of COVID-19 and is seeking but has not yet received a medical diagnosis;
• The employee is caring for someone subject to a federal, state or local quarantine or isolation order related to COVID-19 or who has been advised by their healthcare provider to self-quarantine for COVID-19 related reasons; or
• The employee is caring for their son or daughter because the child’s school or childcare facility has been closed or the childcare provider is no longer available because of a COVID-19 related reason.
Both acts apply to all government employers. To be eligible for emergency FMLA leave, an employee must have worked for the employer for a minimum of 30 days. There are no eligibility requirements for emergency paid sick leave. Both full-time and part-time employees, as well as temporary employees, are entitled to take emergency paid FMLA leave and emergency paid sick leave.
Both the Emergency FMLA Act and the Sick Leave Act permit employers to exclude health care providers and emergency responders from the requirements to provide paid emergency FMLA leave and emergency paid sick leave.
Source:
https://canons.sog.unc.edu/highlights-of-the-u-s-department-of-labors-final-ffcra-regulations/
“Heath and Economic Recovery Omnibus Emergency Solutions” or “HEROES” Act.
OSHA
• requirement that the Occupational Safety and Health Administration (OSHA) issue an emergency standard to protect health care workers and emergency responders from COVID-19
Source:
https://www.osha.gov/SLTC/covid-19/standards.html
Expanded Unemployment Insurance
• The bill would extend expanded unemployment insurance (UI) provisions created by the Coronavirus Aid, Relief, and Economic Security (CARES) Act through January 31, 2021, including the CARES Act’s provision of an additional 13 weeks of unemployment eligibility; extra $600 per week enhanced unemployment benefits; and the Pandemic Unemployment Assistance program, which provides unemployment benefits to workers traditionally ineligible for UI such as independent contractors and self-employed workers.
Source:
https://www.jdsupra.com/legalnews/house-passes-new-3-trillion-covid-19-63085/
Paid FMLA/Sick Leave
• The bill dramatically expands the Emergency Family and Medical Leave Act (EFMLA) and Emergency Paid Sick Leave Act (EPSLA) provisions created by the Families First Coronavirus Relief Act (FFCRA). Most notably, the bill would eliminate the provisions of the FFCRA mandating that only smaller businesses (those with fewer than 500 employees) provide this leave, and would require all private-sector employers to provide 80 hours of paid sick leave and up to 12 weeks of EFMLA leave (10 of them paid) to all private-sector employers. In addition, the bill expands the reasons for which EFMLA leave can be taken, and eliminates exemptions from FFCRA requirements for health care employers, emergency responders, and small businesses.
Source:
https://www.lexology.com/library/detail.aspx?g=113af271-8dbe-414d-9514-b80b5441baaa
Hazard Pay
• Create a federally funded $180 billion grant program under which employers of “essential” workers could obtain federal dollars to pay premium pay for their workers, retroactive to January 27, 2020. Premium pay for essential workers would be $13/hour, capped at $10,000 per worker ($5,000 for those earning $200,000 or more annually).
Source:
Paycheck Protection Program (PPP) Amendments
• Extend the authority of the Small Business Administration to grant loans under the PPP until December 31, 2020 (or until the current $659 billion in funding runs out). In addition, the HEROS Act would extend the covered period for use of the loan for up to 24 weeks after loan origination, or December 31, whichever is earlier; allow PPP borrowers additional time (to December 31, 2020) to bring employees back on the payroll for purposes of loan forgiveness; remove the current requirement that 75% of a PPP loan must be used for payroll to be forgivable; provide that employers would not be penalized in terms of PPP loan forgiveness where they are unable to rehire certain workers or cannot find similarly qualified employees; and extend maturity of PPP loans to a minimum of five years.
Source:
New Jersey Executive Orders 107
In New Jersey, an employer is only required to advise an employee, in writing, if it is reducing its rate of pay/hours; an employer does not need to provide an employee notice of a furlough or layoff (unless the layoff is subject to the New Jersey WARN Act, as described below). However, some employers may decide to provide written notice to employees of their decision, the reason and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future:
Source:
https://www.lexology.com/library/detail.aspx?g=5580a112-ac95-451f-b638-3c8e654d4153
Furlough
• § Advise employees they must not work during the furlough period and consider keeping employer issued mobile devices and limiting or cutting off email access.
• § Employee receipt of continuation of health benefits dependent on health insurance policies, plan documents and other policies or agreements with employees.
• § Employee may be entitled to state sick pay under the New Jersey Paid Sick Leave (“NJ PSL”).
• § Employee is entitled to federal sick pay under the Families First Coronavirus Response Act “FFCRA” if employer has 500 or fewer employees.
Source:
https://www.lexology.com/library/detail.aspx?g=5580a112-ac95-451f-b638-3c8e654d4153
Layoff/Termination
• § Final pay due must be made no later than the next regular pay day (which may not be more than 10 days from the end of the work period for which such wages were earned). Unused vacation or PTO may need to be paid out depending on company policy.
• § You not need to pay accrued paid sick leave at time of termination or layoff.
• § If you layoff or terminate a salaried employee, you need only pay them through the final day’s work.
Source:
https://www.lexology.com/library/detail.aspx?g=5580a112-ac95-451f-b638-3c8e654d4153
Reduction in Hours
• § Take care not to reduce hours in a way that appears discriminatory – such as only for higher paid (and generally older) workers.
Source:
https://www.lexology.com/library/detail.aspx?g=5580a112-ac95-451f-b638-3c8e654d4153
Work From Home
• § There are no laws governing reimbursing employees for expenses when working from home in New Jersey. However, employers may want to consider reimbursement to their employees for such expenses as home internet, cell phone usage, printer ink, paper, and other relevant supplies. Demand proof of incurred expenses.
Source:
https://www.lexology.com/library/detail.aspx?g=5580a112-ac95-451f-b638-3c8e654d4153
New Jersey Warn Act
• If you are an individual or private business establishment that has been in operation in the State of New Jersey for longer than three years and you employ 100 or more full-time employees, you must comply with the NJ WARN Act if you anticipate a "mass layoff." A “mass layoff” means a reduction in force which is not the result of a transfer or termination of operations and which results in the termination of employment at an establishment during any 30-day period for 500 or more full-time employees or for 50 or more of the full-time employees representing one third or more of the full-time employees at the establishment.
• Before the first termination of employment occurs, an employer must provide no less than 60 days advance notice in writing to the following entities:
Source:
https://koreins.com/covid-19-epl-new-jersey/
Commissioner of Labor and Workforce Development;
• The chief elected official of the municipality where the establishment is located;
• Each employee whose employment is to be terminated; and
• Any collective bargaining unit of employees at the establishment.
• A severance must be provided to each full-time terminated employee to whom the employer provides less than the number of days of notification. Calculation is equal to one week of pay for each full year of employment and is in addition to any other severance paid for any reason. Back pay provided by the employer to conform to the WARN law is credited towards meeting this severance pay criteria.
Source:
https://koreins.com/covid-19-epl-new-jersey/
New Jersey Paid Sick Leave (PSL)
Under New Jersey’s Paid Sick Leave, an employee is entitled to up to five (5) days of paid leave to be used in any of the following instances:
• A person who has COVID-19, or symptoms of COVID-19;
• A worker was unable to work because of school or daycare closed for a public health reason;
• A worker was exposed and quarantined and his employer remains open;
• A person who is out of work because employer was ordered closed;
• An employer stays open in defiance of public health urging to close, and worker refuses to work;
• A worker is afraid of gathering in a group and refuses to go to work (self-distancing);
• A worker is immune-compromised and advised by healthcare provider to self-quarantine;
• A health care worker exposed at work and self-quarantine; or
• A worker is caring for a sick family member
• New Jersey Unemployment Insurance
• If an employee’s hours are reduced, but not completely cut, he/she may be able to collect Unemployment Insurance Benefits. Specifically, to be eligible for partial unemployment benefits, the person cannot work more that 80% of the hours normally worked. For example, if a person normally works 40 hours a week, they cannot work more than 32 hours in a week to be eligible. Additionally, if the person earns 20% or less of their weekly benefit rate, the person would receive the full weekly benefit. For earnings greater than the 20%, the weekly benefit would be reduced.
Source:
https://koreins.com/covid-19-epl-new-jersey/
Time Off From Work Related to Infectious Disease
• NJ A3848 bans employers from terminating or penalizing employees who request or take time off based on the recommendation of a medical professional because the employee has or is likely to have an infectious disease “which may infect others at the employee’s workplace.” Additionally, the law requires employers to reinstate employees who take such leave to the same position held “with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.”
Source:
New Jersey Family Leave Act, Family Leave Insurance and Temporary Disability Insurance
• NJ S2304 amends the New Jersey Family Leave Act (FLA), suspending, during a state of emergency, the provisions that denied paid leave to a company’s highest paid employees.
• In addition, the legislation expands the definition of a “serious health condition” under the FLA, New Jersey’s Family Leave Insurance (FLI) and Temporary Disability Insurance (TDI) during a state of emergency declared by the Governor so that workers can now qualify for benefits if they or a loved one have been exposed to a communicable disease and must self-quarantine.
• The amendments also clarify leave that may be taken to “care for family members suffering from an accident or sickness,” as the term “sickness” has been expanded to now include an illness caused by an epidemic of a communicable disease, or suspected exposure to same, or efforts to prevent the spread of same which requires “in-home care or treatment” of an employee or family member.
• The law likewise eliminates the waiting period before employees are entitled to receive TD benefits due to a “sickness” as defined above.
Source:
Earned Sick Leave Act
• NJ S2304 amends New Jersey’s Earned Sick Leave (the Act) to allow employees to use earned sick leave where the employee is not able to work because of:
• A closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due or because of a state of emergency declared by the Governor due to an epidemic or other public health emergency; or
• The declaration of a state of emergency by the Governor, or the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others; or
• During a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other authorized public official, 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 the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.
Source:
NY Executive Orders
• New York State on Pause” Executive Order directed all New York “non-essential” businesses to cease in-office personnel functions and “utilize to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize.”
14 categories of “essential businesses” that are exempt from the in-person restrictions and may continue to operate on-site:
If a business thinks it is essential, must complete a one page application.
(https://www.businessexpress.ny.gov/app/nyforward)
https://esd.ny.gov/guidance-executive-order-2026
1. Essential health care operations including
• research and laboratory services
• hospitals
• walk-in-care health clinics and facilities
• veterinary and livestock medical services
• senior/elder care
• medical wholesale and distribution
• home health care workers or aides for the elderly
• doctors and doctors’ offices
• dentists and dental practices
• nursing homes, residential health care facilities, or congregate care facilities
• medical supplies and equipment manufacturers and providers
• licensed mental health providers
• licensed substance abuse treatment providers
• medical billing support personnel
• speech pathologists and speech therapy
• emergency chiropractic services
• acupuncture, prescribed by medical professional
• physical therapy, prescribed by medical professional
• occupational therapy, prescribed by medical professional
2. Essential infrastructure including
public and private utilities including but not limited to power generation, fuel supply, and transmission
• public water and wastewater
• telecommunications and data centers
• airlines/airports
• commercial shipping vessels/ports and seaports
• transportation infrastructure such as bus, rail, for-hire vehicles, garages
• hotels, and other places of accommodation, including campgrounds. Campgrounds must take precautions to ensure campers maintain appropriate social distancing and adhere to proper cleaning and disinfecting protocols, including but not limited to maintaining six feet of distance between campers, unless wearing an acceptable face covering, excluding persons from the same household who are camping together.
3. Essential manufacturing including
• food processing, manufacturing agents including all foods and beverages
• chemicals
• medical equipment/instruments
• pharmaceuticals
• sanitary products including personal care products regulated by the Food and Drug Administration (FDA)
• telecommunications
• microelectronics/semi-conductor
• food-producing agriculture/farms
• household paper products
• defense industry and the transportation infrastructure
• automobiles
• any parts or components necessary for essential products that are referenced within this guidance
4. Essential retail including
• grocery stores including all food and beverage stores
• pharmacies
• convenience stores
• farmer’s markets
• gas stations
• restaurants/bars (but only for take-out/delivery)
• hardware, appliance, and building material stores
• pet food
• telecommunications to service existing customers and accounts
• in regions that are not yet within the first phase of the state's regional reopening plan, delivery for orders placed remotely via phone or online at non-essential retail establishments; provided, however, that only one employee is physically present at the business location to fulfill orders
5. Essential services including
• trash and recycling collection, processing, and disposal
• mail and shipping services
• laundromats and other clothing/fabric cleaning services
• building cleaning and maintenance
• child care services
• bicycle repair
• auto repair and maintenance
• automotive sales conducted remotely or electronically, with in-person vehicle showing, return, and delivery by appointment only
• warehouse/distribution and fulfillment
• funeral homes, crematoriums and cemeteries
• storage for essential businesses
• maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein
• animal shelters and animal care including dog walking, animal boarding and pet grooming but only to the extent necessary to ensure animal health
• landscaping, gardening and horticulture
• designing, printing, publishing and signage companies to the extent that they support essential businesses or services
• remote instruction or streaming of classes from public or private schools or health/fitness centers; provided, however, that no in-person congregate classes are permitted
6. News media
7. Financial Institutions including
• banks or lending institution
• insurance
• payroll
• accounting
• services related to financial markets, except debt collection
8. Providers of basic necessities to economically disadvantaged populations including
• homeless shelters and congregate care facilities
• food banks
• human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support
9. Construction
• All non-essential construction is limited to only staging activities in regions that are not yet within the first phase of the state’s reopening plan, except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone, but only to the point that it is safe to suspend work).
• Essential construction includes:
• construction for, or your business provides necessary support for construction projects involving, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;
• construction for affordable housing, as defined as construction work where either (i) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority;
• construction necessary to protect the health and safety of occupants of a structure;
• construction necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;
• construction for existing (i.e. currently underway) projects of an essential business; or
• construction work that is being completed by a single worker who is the sole employee/worker on the job site.
• At every site, it is required that the personnel working on the site maintain an appropriate social distance, including for purposes of elevators/meals/entry and exits. Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close. Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation.
• Construction may continue solely with respect to those employees that must be present at the business location/construction site in support of essential business activities. No other employees/personnel shall be permitted to work in-person at the business location/construction site. For staging activities, an in-person workforce may be present on-site to:
• Clean, sanitize, and/or disinfect common and work areas;
• Test run hoists, elevators, cranes, and other equipment;
• Establish new and multiple entrances/exists to control the movement of personnel and allow for health screening, including temperature taking;
• Install hand hygiene/wash stations or retrofit existing ones with touchless faucets and dispensers;
• Install health screening stations or devices at entrances;
• Affix social distancing, hygiene, and cleaning/disinfection signage, including posters, markers, and directional arrows;
• Deliver and stockpile personal protective equipment (e.g. face coverings, face shields, gloves); and
• Order, unload, and rough set materials that specialty contractors or subcontractors need to perform work (e.g. structural supports, piping, conduits, drywall).
• As noted above, local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from these essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects should be considered those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.
10. Defense
• defense and national security-related operations supporting the U.S. Government or a contractor to the US government
11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including
• law enforcement, including corrections and community supervision
• fire prevention and response
• building code enforcement
• security
• emergency management and response, EMS and 911 dispatch
• building cleaners or janitors
• general and specialized maintenance whether employed by the entity directly or a vendor, including but not limited to heating, ventilation, and air conditioning (HVAC) and pool maintenance
• automotive repair
• cleaning, disinfection, and sanitation services
• occupational safety and health professionals
• residential and commercial moving services
• 12. Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to:
• logistics
• technology support for online services
• child care programs and services
• government owned or leased buildings
• essential government services
• any personnel necessary for online or distance learning or classes delivered via remote means
13. Recreation
• Parks and other open public spaces, except playgrounds and other areas of congregation where social distancing cannot be abided
• Outdoor, low-risk recreational activities are permitted so long as social distancing and cleaning/disinfecting measures are in place:
• tennis;
• non-motorized boat use and rentals, such as row boats, kayaks, canoes; and
• golf and driving ranges, except miniature (mini) golf, with food and retail services subject to the restrictions that are currently in effect within the region
• Drive-in movie theaters so long as social distancing and cleaning/disinfecting measures are in place
• Marinas, boatyards, and recreational marine manufacturers, for ongoing marina operations and boat repair/maintenance, where such facilities adhere to strict social distancing and sanitization protocols. In regions that are not within the first phase of the state's regional reopening plan, use of such sites for the purposes of personal use or operation of boats or other watercraft is permissible, provided that no establishment offer chartered motorized watercraft services or motorized boat rentals. Restaurant activity at such sites are limited to take-out or delivery only.
14. Professional services with extensive restrictions
• Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.
• Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).
NYS Sick Leave Specifically Applicable During a Mandatory or Precautionary Quarantine or Isolation Order Due to COVID-19
New York State must be provided sick leave based on the size and/or net income of their employer:
Employer Size Leave Entitlement Other Available Benefits
10 or fewer employees and a net income of less than or equal to $1 million Unpaid job protection for the duration of a mandatory or precautionary order of quarantine or isolation NY Paid Family Leave and disability benefits for the entire period
10 or fewer employees and a net income greater than $1 million
Or
Employers with 11 to 99 employees irrespective of net income
At least 5 days of paid sick leave (with the rest unpaid) and job protection for the duration of a mandatory or precautionary order of quarantine or isolation NY Paid Family Leave and disability benefits for the period after the 5 days of paid sick leave
Employers with 100 or more employees irrespective of income
Or
All public employers (regardless of number of employees)
At least 14 days of paid sick leave (with the rest unpaid) and job protection for the duration of a mandatory or precautionary order of quarantine or isolation Silent
Exceptions:
• Employees are not eligible for paid sick leave due to a COVID-19 mandatory or precautionary quarantine or isolation order if: (1) they returned from traveling to a country for which the Centers for Disease Control and Prevention has issued a level two or level three travel health notice; (2) that travel was not taken part of the employee’s employment or at the direction of the employer;and (3) the employee was provided notice of the travel health notice and notice of the limitations contained in the new law prior to travel.
• It does not apply at all if an employee: (1) is physically able to work while under a mandatory or precautionary quarantine or isolation order, through “remote access or similar means;” and (2) either is deemed asymptomatic, or has not yet been diagnosed with any medical condition.
Source:
NY Workers Compensation Amendment
• The law amends the New York Workers’ Compensation Law to further define “disability” as an inability of the employee to perform their job duties or any other duties offered by their employer due to a mandatory or precautionary order of quarantine or isolation due to COVID-19
Source
NYC Earned Safe and Sick Time Act
• COVID-19 may cause the Earned Safe and Sick Leave Act for full-time, part-time, temporary, on-call, and undocumented employees for any size and business or non profit. Employees can receive up to 40 hours five calendar days of sick leave each calendar year. Employers with five or more employees must provide this as paid sick leave. Employers with fewer than five employees may provide this as unpaid leave.
Source:
https://www.littler.com/publication-press/publication/covid-19-roadmap-new-york-employers
The Coronavirus Aid, Relief, and Economic Security (CARES) Act
The Care Act was signed into law on March 27. It expands states’ ability to provide unemployment insurance for many workers impacted by the COVID-19 pandemic, including for workers who are not ordinarily eligible for unemployment benefits. The act provides:
• $600 Extra Weekly Unemployment Benefits
o In New York State, the unemployment benefit cap is $504.00.
• Tax Credit of $5,000 of compensation, including health benefits.
o Employers with fewer than 100 fulltime employees will receive a tax credit of up to $5,000 for each employee they keep
o Employers with more than 100 full-time employees are eligible but have to met one of two requirements:
(a) the business is fully or partially suspended due to a governmental order related to COVID-19 or
(b) the gross receipts for the business are less than 50% of gross receipts for the same calendar quarter of the prior year
Source:
https://www.jdsupra.com/legalnews/a-covid-19-roadmap-for-new-york-71158/
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