COVID-19: Important Changes to Employment Laws
Client Alerts | March 23, 2020 | Employment Litigation
Federal and state laws have quickly evolved to offer relief to various groups of employees unable to work due to the 2019 novel coronavirus (COVID-19) pandemic. The following summary is intended to be a general guideline, as there are nuances which may affect each particular situation.
New York State has recently passed emergency legislation to provide sick leave, family leave and disability benefits to certain employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.
The scope of benefits available depends upon the size and net income of the employer.
- Employers with 10 or fewer employees with a net income less than one million dollars in the prior tax year, as of January 1, 2020, must provide unpaid sick leave until the order of quarantine or isolation is lifted. Employees are also eligible for paid family leave and short-term disability benefits.
- As of January 1, 2020, employers with 10 or fewer employees with a net income greater than one million dollars in the prior tax year, must provide employees with at least five days of paid sick leave and then unpaid leave until the order of quarantine or isolation is lifted. After the five days of paid sick leave are provided, workers will have access to paid family leave and short-term disability benefits.
- Employers with 11 to 99 employees as of January 1, 2020 must provide employees with at least five days of paid sick leave, and thereafter workers will have access to paid family leave and short-term disability benefits. After the five days of paid sick leave are provided, employers must provide employees with unpaid leave until the order of quarantine or isolation is lifted.
- Employers with 100 or more employees as of January 1, 2020 must provide employees with at least 14 days of paid sick leave, and thereafter grant workers access to paid family leave and short-term disability benefits.
To be eligible for paid sick or family leave, the employee must (i) be subject to a mandatory or precautionary order or quarantine issued by the State, the Department of Health, a local board of health or any authorized government agency; or (ii) take leave to provide care for a dependent child subject to a mandatory or precautionary order of quarantine or isolation.
Disability and family leave benefits may be paid concurrently on the first full day of an unpaid period. Benefits for paid family leave and disability are subject to a weekly cap of $840.70 and $2,043.92, respectively.
At the federal level, President Donald J. Trump signed the Families First Coronavirus Response Act, H.R. 6201, (“FFCRA”) on March 18, 2020. Included within the FFCRA are the Emergency Family and Medical Leave Expansion Act (“EFMLA”), which amends the Family and Medical Leave Act of 1993, due to a qualifying public health emergency, and the Emergency Paid Sick Leave Act (“EPSLA”). The FFCRA and an employer’s obligation to provide leave per the terms described below will become effective no later than April 2, 2020 and expire on December 31, 2020.
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT:
Coverage under EFMLA increases to affect all employers with fewer than 500 employees (instead of 50 or more employees under the FMLA); employers with 500 or more employees are not mentioned in the EFMLA. Under the EFMLA, eligible employees (employed for at least 30 calendar days) who are unable to work (or telework) are entitled to take up to 12 weeks of job protected family leave if they have a child (under the age of 18) whose school or child care provider is closed or unavailable for reasons related to COVID-19.
- The first 10 days will be considered unpaid leave, unless the employee chooses instead to substitute any accrued/unused vacation leave, personal leave, or medical or sick leave during the initial 10-day period.
- After those first 10 days, eligible employees will then be entitled to paid leave for the remaining 10 weeks. Full-time employees are entitled to paid leave in an amount not less than two-thirds of an employee’s “regular rate of pay” based on the number of hours the employee would otherwise be scheduled to work. Employees who work part-time are entitled to be paid based on the average number of hours the employee worked for the prior six-month period; those employees who worked less than six months prior to leave are entitled to calculate payments based upon their reasonable expectation of the average number of hours the employee would have been scheduled to work. Paid leave under the EFMLA is limited to $200 per day and $10,000 in the aggregate.
- Employers with 25 or more employees remain obligated, as under existing FMLA terms, to allow a returning employee their same or equivalent job at the conclusion of their leave.
- Employers with less than 25 employees are exempt from this requirement if the employee’s position has been eliminated based upon the economic downtown or as the result of the public health crisis, although they may remain obligated to make reasonable efforts to reemploy the employee in equivalent position for up to a year.
EMERGENCY PAID SICK LEAVE ACT:
The EPSLA requirements apply to employers with fewer than 500 employees. EPSLA provides employees with paid sick leave to the extent that the employee is unable to work (or telework) due to a need for leave based upon:
- the employee being subject to a federal, state, or local quarantine or isolation order pertaining to COVID-19;
- the employee having been advised by a licensed health care provider to self-quarantine related to COVID-19;
- the employee exhibiting symptoms of COVID-19 and actively pursuing a medical diagnosis;
- the employee being responsible for the care of someone who is subject to an order as described above or has been advised to self-quarantine;
- the employee being responsible for the care of his/her child where the school or place of care for that child has been closed, or the child care provider of such child is unavailable based upon COVID-19 precautions; or
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of Labor and the Secretary of Treasury.
- Under EPSLA, full-time employees are eligible (regardless of how long they’ve been employed) to receive up to 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate under certain circumstances).
- Eligible part-time employees are entitled to receive paid sick leave in an amount based upon the number of hours that such employee works, on average, over a two-week period.
- Paid sick leave wages are capped at $511 a day up to a total of $5,110 per employee for themselves, and $200 per day up to a total of $2,000 for the care of others. An employee is not required to use other paid leave provided by the employer before being eligible for paid sick time under the EPSLA.
Employers may be entitled to refundable tax credits equal to 100% of the benefits paid under the EFMLA or EPSLA, allowable against the employer portion of Social Security taxes.
If you have questions regarding these recently enacted federal and state laws or are presented with employment-related issues during these challenging times, please contact our Employment Litigation team or your regular Kleinberg Kaplan contact.