The federal government recently enacted the Families First Coronavirus Response Act which provides emergency aid to workers as a result the Covid-19 outbreak. The Families First Coronavirus Response Act is a compressive package that, in part, temporary amends the Family and Medical Leave Act (“FMLA”) to incorporate, paid sick leave and extended family leave to support workers that can no longer work due to the coronavirus pandemic.
With respect to paid leave, the Families First Coronavirus Response Act is essentially comprised of two components: The Emergency Paid Sick Leave Act and The Emergency Family and Medical Leave Expansion Act.
The Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act provides employees two (2) weeks of paid leave for coronavirus related reasons. In order to quality, an employee’s leave must be for one of the following reasons, many of which requiring some sort of medical attention or authorization:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
- The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph or has been advised as described in paragraph (2).
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Notably, however, there is an exception for employers who employ health care providers or emergency responders. Those employers may exclude certain employees from qualifying for paid sick leave under the Act.
The Emergency Paid Sick Leave Act also distinguishes between full-time and part time employees. For the purposes of the Act, full-time employees are those which work a minimum of 40 hour per week. All other employees are considered part-time. Full-time employees are eligible for 80 hours of paid sick leave, while part-time employees are only eligible for paid sick leave for the number of hours they would typically work during a two week period. Paid sick leave to be paid at the employee’s regular rate of pay, unless the employee is taking leave under paragraphs (4) or (5) above, in which case the employee is entitled to only two-thirds their regular compensation.
Furthermore, an employer may not require that an employee to utilize or exhaust other forms of paid-time-off prior to using paid leave under the Emergency Paid Sick Leave Act. Additionally, employers are prohibited from retaliating or other wise discriminating against an employee for taking a qualified sick leave under the Act.
The Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Actallows employees to take paid leave when they are unable to work because their children’s school, place of care, or child care provider is unavailable due to the Covid-19 outbreak, so long as one of the children is under the age of 18. Unlike the Emergency Paid Sick Leave Act, employees who need leave to take care of their children under the Emergency Family and Medical Leave Expansion Act are eligible for up to 12 weeks of paid leave. Notably, the first 10 days of the employee’s leave may be unpaid, with the remaining 10 weeks of leave paid at a rate of two-thirds their regular rate of pay.
There are some exceptions to the Emergency Family and Medical Leave Expansion Act. For example, certain health care providers and emergency responders may be not be eligible for paid leave under the Act. Furthermore, employers under with less than 50 employees may not be required to provide paid leave under the Act, if providing such a leave would jeopardize the business.
Generally, the employer is required to return employer to the positions they held prior to their leave when they return. However, under the Emergency Family and Medical Leave Expansion Act, employer with less than 25 employees may not be required to return employees to their positions if any employees position no longer exists when they return from leave, either for economic or Covid-19 related reasons, and the employer makes reasonable efforts to attempt to return them to a same or similar position for up to 1 year and 12 week after the employee commenced his or her leave.
The first major departure from the existing Family and Medical Leave Act what employees are covered under the Act. The Families First Coronavirus Response Act applies to a wider range of employees working in the public sector. Both acts largely borrow their definition of employee from the Fair Labor Standards Act, which includes nearly all private sector employees. However, to qualify for a traditional FMLA protected leave, an employee must have worked for his or her current employee for a period of at least 12 months. The Families First Coronavirus Response Act, as it pertains to paid leave, does not share this requirement. Rather, the Families First Coronavirus Response Act, does not have any time-related employment requirement. The Emergency Family and Medical Leave Expansion Act, however, requires employee to have worked for their current employer for at least 30 days.
Typically, the Family and Medical Leave Act only applies to employers with over 50 employees at or near a single worksite. However, the Families First Coronavirus Response Act changes coverage to include those employers with less than 500 total employees, with smaller employers having slightly more lenient requirements (as noted in the Emergency Family and Medical Leave Expansion Act). Additionally, because these emergency provisions pertain specifically to the Covid-19 pandemic, the Families First Coronavirus Response Act is scheduled to remain in effect only until December 31, 2020.
New Jersey Congresswoman Bonnie Watson Coleman commented just after voting on the bill:
“These actions will put enormous stress on our healthcare and economic systems. I want people to begin to stay home when possible – take advantage of telework, avoid large gatherings, and minimize time in public spaces. This bill is about making sure families and employees aren’t hurt by those important public health directives.”
While this federal legislation provides aid and security to workers nationwide, states continue to pass their own law bolstering worker protection. New Jersey had passed its own Covid-19 related employee aid packages that work hand-in-hand with their federal counter parts, such as the recently enacted amendments to the New Jersey Family Leave Act. Our New Jersey employment lawyers will continue to monitor further COVID-19 legislation that impacts the rights of New Jersey workers.