The federal Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020 and became effective April 1, 2020. The FFCRA provides a host of benefits, but one of the most important of the act’s provisions is designed to help employees deal with the effects of the coronavirus by granting 14 days paid leave for covered staff members.
The U.S. Department of Labor’s Wage and Hour Division (WHD) is charged with administering and enforcing the new law’s paid leave requirements, which apply to certain employers and runs through Dec. 31, 2020.
Who is considered a covered employer?
Certain public employers, and private employers with fewer than 500 employees are covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA.
Small businesses with fewer than 50 employees may qualify to be exempt from the requirement to provide leave due to school closings or childcare unavailability, if the leave requirements would jeopardize the viability of the business as a going concern.
This could be important when schools begin to reopen and find that various service providers may incorrectly believe that the law applies to keep them closed.
Most employees that are employed by the federal government are covered by the Family and Medical Leave Act (FMLA, specifically Title II) and are therefore not covered by the expanded family medical and leave provisions of the FFCRA because FMLA was not amended by this act. Federal employees are covered by the paid sick leave provision contained in Title II of the Family and Medical Leave Act.
The FFCRA provides that all employees of covered employers must be provided with:
- Up to 80 hours (two weeks) of paid sick leave at the employee’s regular rate of pay when the employee is unable to work because the employee is quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Up to 80 hours (two weeks) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a need to care for an individual subject to quarantine, or care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19 and/or the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services, in consultation with the secretaries of the U.S. Treasury and Labor departments.
In order to be considered a covered employee, that employee must have worked for the employer for at least 30 days.
In addition to what’s described above, according to the Department of Labor, Division of Wage and Hour’s temporary regulation, an employee can receive an additional 10 weeks of paid expanded family and medical leave at 2/3 the employee’s regular rate of pay when an employee is unable to work due to a need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.
What qualifies as a reason for leave?
An employee qualifies for paid sick time under the FFCRA if the employee is unable to work (or telework) due to a need for leave because the employee:
- is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the U.S. Secretaries of Labor and Treasury.
How long is the duration of leave?
For all of the reasons listed above except number five, a full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. For reason number five, a full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
How is the employee’s pay calculated?
For the first three leave reasons on the list above, an employee would be entitled to be paid at either their regular rate, or the applicable minimum wage, whichever is higher, up to a maximum of $511 per day and a maximum of $5,110 (over the two-week period).
For reasons numbers four and six, an employee would be paid at 2/3 their regular rate or 2/3 the minimum wage, whichever is higher, up to a maximum of $200 per day and $2,000 total over a two-week period.
For reason number five, an employee would be entitled to pay at 2/3 their regular rate or 2/3 the minimum wage, whichever is higher, up to $200 per day, and a maximum of $12,000 over a 12-week period.
Employees are protected from discharge, discipline, or other discrimination by their employer for taking paid sick leave under the FFCRA or filing a complaint or instituting a proceeding under or related to the FFCRA. Employers are required to make employees aware of the FFCRA requirements by posting such requirements in a conspicuous place within the workplace.
What are employers entitled to under the FFCRA?
For any employees that take qualifying wages under the FFCRA, the covered employers will qualify dollar-for-dollar reimbursement through tax credits up to the appropriate per diem and aggregate payment caps. These tax credits also extend to the amounts paid or incurred to maintain health coverage for eligible employees.
More information on employee’s paid leave rights is available here: https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA-Employee_Paid_Leave_Rights.pdf.
NJ’s Earned Sick Leave New Jersey is one of 12 states plus the District of Columbia to guarantee access to earned sick leave, ensuring employees do not lose pay if they call out sick. New Jersey’s Earned Sick and Safe Days Act allows workers to accrue one hour of earned sick leave for every 30 hours worked up for 40 hours or five full days every year. Employers of every size are covered, including employers based outside of New Jersey.
N.J. Temporary Disability If an employee uses all of his or her allotted sick leave, that employee may qualify for temporary disability insurance in New Jersey. In order to have a valid claim for Temporary Disability Insurance, that employee needs to have paid into the program through your employment and meet minimum gross earnings requirements. To qualify for disability insurance in 2020, an employee must have worked 20 weeks earning at least $200 weekly, or have earned a combined total of $10,000 in the first four of the last five quarters.
N.J. Family Leave Insurance New Jersey employees who must care for a sick family member will be eligible for state paid leave benefits. While state leave benefits will increase on July 1, currently workers can receive up to six weeks of benefits equal to 2/3 of their pay, capped at $667 a week. The definition of “serious health condition” during a public emergency has been expanded so that workers can qualify for benefits if they or a loved one have been exposed to a communicable disease and must self-quarantine.
Federal CARES Act The federalCARES Act builds upon previous legislation that the federal government passed and is intended to be the third round of support from the federal government to support the public and the associated economic fallout of the coronavirus. The CARES Act includes some key additions in benefits for workers.
First, unemployment insurance provisions now include an additional $600 per week payment to recipients for up to four months. Unemployment insurance benefits are extended to self-employed workers, independent contractors, and those with limited work history. The federal government will also provide temporary full funding of the first week of regular unemployment for states with no waiting period and extend unemployment insurance benefits for an additional 13 weeks through Dec. 31, 2020 after state unemployment insurance benefits end.
Second, employers are eligible for a 50 percent refundable payroll tax credit on wages paid up to $10,000 during this crisis. Employers whose businesses were disrupted due to virus shutdowns will be able to receive the credit and those that had a decrease in gross receipts of 50% or more will also be able to receive the credit. The credit can be claimed for employees who are retained but are not currently working due to the crisis for employers with more than 100 employees and for all employers whose employees are working or not with 100 or fewer employees.
Employers may contribute up to $5,250 annually towards student loans and those payments would be excluded from an employee’s income.
Finally, there is $350 billion allocated for the paycheck protection plan, which is meant to help small businesses with fewer than 500 employees impacted by the downturn to make payroll and cover other expenses from February 15 through June 30. Small businesses may take out loans up to $10 million limited to a formula tied to payroll costs and can cover employees making up to $100,000 a year. Loans may be forgiven if a firm uses the loan for payroll, interest payments on mortgages, rent, and utilities.
This loan forgiveness will be reduced if an employer reduces the number of employees retained compared to the prior year and a 25% or greater reduction in employee compensation.
For additional information, please contact your local board attorney or the NJSBA Legal and Labor Relations Department at (609) 278-5254.