The Coronavirus | For the New Jersey or New York Employer and Employee

What you need to know.


Sadly, instead of squeezing into small Irish pubs throughout the State, and cheering to yet another day on the calendar to celebrate anything and everything, we find ourselves drinking Gatorade and staying hydrated in our “remote” offices, attempting to electronically perform our jobs, and praying this pandemonium somehow, magically, avoids invading our homes. For my Jewish friends, not since the lining of our doorposts with goats’ blood have we remained in our homes, while the black shadow of death creeps into our neighborhoods, destroying the fabric of our known realities we spent a lifetime creating.

Religious and historical drama aside, business owners on the one hand and employees on the other need answers and need them now.

Congress

Congress has been working feverishly to protect the balance between employer and employee during this unprecedented time. The U.S. House of Representatives recently passed a bill, which is expected to head to the Senate and then the White House in the coming days, if not sooner.

The Families First Coronavirus Act (H.R. 6201) (the “Act”) was passed by the U.S. House of Representatives on March 14, 2020. The Act amends the Family and Medical Leave Act (“FMLA”) and provides additional reasons for leave as well as mandated pay. Under the FMLA, for employees who were employed with the employer the previous 12 months and worked a minimum of 1,250 hours during said 12 months, such employees were able to take up to twelve weeks of unpaid leave for serious health issues or care for a newborn while, at the same time, maintain the comfort of job protection. The FMLA only applied to employers with 50 or more employees.

Under the Act, which is not yet law, the legislation applies to employers with less than 500 employees and for employees who have been at the job for 30 or more days. What is currently being bandied about in Congress is what size employers are exempt from the new restrictions. The House’s version references exemption for employers with fewer than 50 employees, on account of obvious concern regarding the ability of the business to survive. It would not be surprising to see that referenced amount increase to 75 or 100 employees in the coming days as the Act makes its way around Washington.

The Act provides for the first two weeks of leave to be unpaid, and then, thereafter, for employees to be paid at two-thirds of their regular rate of pay. At the same time, on account of a corresponding new federal paid sick leave law which is also making its way down Pennsylvania Avenue, employers would be responsible to pay up to 80 hours of paid sick leave to employees who are experiencing Coronavirus/COVID-19 issues. Both the Act and new paid leave law would take effect 15 days following enactment and remain in place throughout 2020.

Leave under the Act is permitted under the following circumstances:

  • To comply with a recommendation or order by a health authority or a health care provider that the physical presence of the em ployee on the job would jeopardize the health of others because of the (a) exposure of the employee to coronavirus, or (b) exhibition of symptoms of Coronavirus/COVID-19 by the employee, and the employee is unable to both perform the functions of the job and comply with the recommendation or order.
  • To care for a family member of an eligible employee, where a health authority or a healthcare provider makes a determination that the presence of the family member in the community would jeopardize the health of others in the community becaus e of the (a) exposure of the family member to Coronavirus/COVID-19 or (b) exhibition of symptoms of Coronavirus/COVID-19 by the family member.
  • To care for a child of the employee who is under 18 years old if the elementary or secondary school or place of care has been closed, or the childcare provider of the child is unavailable, due to a public health emergency.

With the closure of all of New Jersey’s public and private schools effective March 18, 2020, it appears that the Act, assuming it becomes law, will be applicable to an overwhelming number of individuals (under the third prong), even if such individuals are not exhibiting symptoms of the virus nor caring for a family member who may be exhibiting symptoms of the virus.

For an employee to be paid for up to 80 hours (two weeks) under the new paid sick leave law, such employee would need to demonstrate that such employee:

  • is self-isolating because the employee is diagnosed with Coronavirus/COVID-19.
  • obtained a medical diagnosis or care if such employee is experiencing the symptoms of Coronavirus/COVID-19.
  • is complying with a recommendation or order by a public official with jurisdiction or a healthcare provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of:
    • the exposure of the employee to Coronavirus/COVID-19; or
    • exhibition of symptoms of Coronavirus/COVID-19 by the employee.
  • is caring for or assisting a family member of the employee:
    • who:
      • is self-isolating because such family member has been diagnosed with coronavirus; or
      • is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care.
    • with respect to whom a public official with jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of:
      • the exposure of such family member to the coronavirus; or
      • exhibition of symptoms of coronavirus by such family member.
  • is caring for the child of such employee if the school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.

The paid sick leave required under the bill must be provided in addition to whatever the employer already provides. Paid sick leave must be provided at the employee’s regular rate of pay, unless it is taken for reasons 4 or 5 above, in which case, it can be paid at two-thirds the regular rate.

Job protection

No differently than the FMLA, the Act requires that an employee be restored to the same or equivalent position after such employee’s leave. However, job protection might not apply to an employer with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by the public health crisis during the period of leave. Moreover, the employer must make reasonable efforts to restore the employee to the same or an equivalent position, and, if the reasonable efforts fail, the employer must make ef forts to contact the employee and reinstate the employee if an equivalent position becomes available within a one- year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started.

Employer responsibility

Although tax credits may be available to it, the employer is responsible to pay all applicable benefits under the Act.

EEOC Guidance

The Equal Employment Opportunity Commission (“EEOC”) recently provided guidance with respect to navigating the coronavirus, in compliance with the Americans with Disabilities Act (“ADA”). Pursuant to EEOC guidelines, if an employee displays influenza-like symptoms, an employer may require them to stay home. While employers may ask employees questions about their symptoms, employers must remember not to ask "medical questions" and to maintain all information about employee illness as a confidential medical record in compliance with the ADA.

During a pandemic, employers may also measure their employees' body temperatures, even though it would be considered a “medical examination,” but they should use caution, as employees may still be infected if they show a negative body temperature. Employers should keep in mind that at no time may they ask employees who do not have flu-like symptoms to disclose whether they have a medical condition that the CDC states could make them especially vulnerable to influenza complications. If an employee voluntarily discloses (without a disability-related inquiry) that he or she has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. Employers must also remember that they are still required to provide their employees with reasonable accommodations for disabilities unrelated to the pandemic. If an employee with a disability needs the same reasonable accommodation at a telework site that he or she had at the workplace, the employer should provide that accommodation, absent undue hardship and no other reasonable accommodation.

Once the pandemic is over, an employer may take the following steps to ensure the safety of its employees:

  • If an employee has been absent from work, an employer may ask if it was due to a medical reason. (An employer is always entitled to know why an employee has not reported to work, but not the specific medical condition); and
  • Require employees who have been absent to provide a doctor’s note certifying they are fit to return to work. (The EEOC recommends being lenient with this rule due to the likely overcrowding of our healthcare system due to COVID-19).

SPECIFIC TO NEW JERSEY EMPLOYERS AND EMPLOYEES

Although signed into law almost two years ago, on May 2, 2018, the New Jersey Paid Sick Leave Act (“Sick Leave Act”), which was then a progressive means to help employees who may be in need, is now, with the coronavirus, once again front and center. The new federal proposals, analyzed above, shall work contemporaneously with the Sick Leave Act for New Jersey businesses and employees. The Sick Leave Act preempted all local paid sick leave laws which were previously enacted in thirteen municipalities throughout the State. With limited exceptions, the Sick Leave Act is applicable to all New Jersey employers. The Sick Leave Act does not apply to public employees (as they are subject to separate leave laws), per diem health care workers nor union construction workers.

The Sick Leave Act’s effective date was October 29, 2018. Thereafter, accrual of sick leave occurs at the rate of 1 hour for every 30 hours worked, up to 40 hours per benefit year, permitting covered employees the ability to use earned leave 120 days following enactment and, for employees hired after October 29, 2018, 120 days following commencement of employment. Employees may carry over up to 40 hours of unused earned paid sick leave to the following year, but will only be able to use 40 hours of leave during any year. Upon separation from employment, unused earned paid sick leave need not be converted into compensation or time owed to employees, unless the employer has in place a policy or procedure which dictates otherwise

The Sick Leave Act permits employees to use earned paid sick leave for any of the following:

  • Diagnosis, care, treatment of, or recovery from the employee’s mental or physical health condition, including preventive care;
  • Diagnosis, care, treatment of, or recovery from a family member's mental or physical health condition, including preventive care;
  • Time needed for employees or their family members’ condition as a victim of domestic or sexual violence, including counseling, legal services, or participation in civil or criminal proceedings;
  • Closure of the workplace, school, or childcare by order of a public official due to a public health concern; and
  • Attendance at a school-related conference or meeting.

The Sick Leave Act expansively defined the term “family member” to include an employee’s “child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner, or civil union partner of a parent or grandparent of the employee, or a sibling of a spouse, domestic partner, or civil union partner of the employee, or any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.”

In terms of compliance, a number of alternative options are available. Employers can monetarily compensate employees in the final month of any benefit year for the full amount of unused earned leave or up to 50% of the amount, with any accrued leave balance carrying over to the following year. Moreover, Employers can elect to forego the accrual process and instead frontload employees with the full complement of earned sick leave for a benefit year, on the first day of such year. For many employers that currently possess policies which offer employees paid time off, which includes sick days, such policies need to be updated to reflect and incorporate requirements under the Sick Leave Act.

For a leave of three days or more, an employer may require reasonable documentation to verify such leave is permissible. Following the Sick Leave Act’s effective date, Employers have been required to provide reasonable notification of the Sick Leave Act to employees by conspicuously posting the notification in a place accessible to employees, as well as providing each employee with written notification.

Employers that do not comply with the Sick Leave Act, and/or retaliate against any employee who utilizes benefits under the Sick Leave Act, can be liable for back pay; liquidated damages, which doubles the amount of wages lost; and attorneys’ fees. With the ongoing health crisis facing our nation and certainly New Jersey, knowledge of the law, prevention and education are key components for New Jersey employment relation success.

New Jersey Department of Labor and Workforce Development

As provided below, the New Jersey Department of Labor and Workforce Development (“NJDLWD”) added to its website a detailed chart which displays various scenarios and benefits available which may arise during the current COVID-19 pandemic. It was created and added by the NJDLWD on March 16, 2020.

SPECIFIC TO NEW YORK EMPLOYERS AND EMPLOYEES

Pursuant to New York State Paid Family Leave Law, workers in New York State have up to ten weeks of paid leave to care for a family member with a serious health condition. Such leave cannot be used for one’s own health condition.

Hot off the press! – Paid Sick Leave Bill (not yet law), announced on March 17, 2020, provides the following:

  1. For employers with 10 or fewer employees as of 1/1/20:
    • Such employers shall provide each employee who is subject to mandatory or precautionary order of quarantine, by governmental entity due to COVID-19, with unpaid sick leave until the termination of quarantine.
    • Employees can collect any other benefit as provided by any other provision of law (i.e. paid family leave & disability benefits).
  1. Employers with 10 or fewer employees as of 1/1/20 and has a net income of greater than one million dollars in the previous tax year:
    • Shall provide each employee who is subject to mandatory or precautionary order of quarantine, by governmental entity due to COVID-19, with at least 5 days of paid sick leave and unpaid leave until termination of quarantine.
    • After 5 days of paid sick leave, the employee shall be eligible for paid family leave benefits and disability benefits.
  2. Employers with between 11-99 employees as of 1/1/20:
    • Shall provide each employee who is subject to mandatory or precautionary order of quarantine, by governmental entity due to COVID-19, with at least 5 days of paid sick leave and unpaid leave until the termination of quarantine.
    • After 5 days of paid sick leave, employee shall be eligible for paid family leave benefits and disability benefits.
  1. Employers with 100+ employees as of 1/1/20:
    • Shall provide each employee who is subject to mandatory or precautionary order of quarantine, by governmental entity due to COVID-19, with at least 14 days of paid sick leave during quarantine.
  1. Other provisions of interest:
    • Job Protection - Upon return to work following leave taken pursuant to this act, an employee shall be restored by his or her employer to the position of employment held by the employee prior to any leave taken pursuant to this act with the same pay and other terms and conditions of employment.
    • Assumption of Risk Exemption - An employee shall not receive paid sick leave benefits, or any other paid benefits pursuant to this Act, if such employee is subject to a mandatory or precautionary order of quarantine because the employee has returned to the United States after traveling to a country for which CDC has level 2 or 3 health notice, and the travel to that country was not taken as part of the employee’s employment, and if employee was provided notice of the travel health notice and limitations of this subdivision prior to such travel.
  2. The provision of the New York Labor Law providing Paid Sick Leave is amended by adding these Sick Leave Requirements:
  3. Employers with 4 or fewer employees in a calendar year:
    • Shall provide each employee with up to 40 hours of unpaid sick leave in a calendar year.
  4. Employers with 4 or fewer employees in a calendar year, which have a net income of greater than one million dollars in the previous tax year:
    • Shall provide each employee with up to 40 hours of paid sick leave.
  5. Employers with between 5 and 99 employees in any calendar year:
    • Shall provide each employee with up to 40 hours of paid sick leave.
  6. Employers with 100+ employees in any calendar year:
    • Shall provide each employee with up to 56 hours of paid sick leave.
  7. How Accrued:
    • Employees accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the effective date of this section, whichever is later.
    • An employer may elect to provide its employees with the total amount of sick leave required to fulfill these obligations at the beginning of the calendar year, provided, however, that no employer shall be permitted to reduce or revoke any such sick leave based on the number of hours actually worked during calendar year if such employer elects pursuant to this subdivision.
  8. Amount paid:
    • Employees shall receive compensation at their regular rate of pay, or minimum wage, whichever is greater, for the use of paid sick leave.
  9. Job Protection – upon return to work, an employee shall be restored to position of employment held.
  10. The future – to become effective January 1, 2021:
    • Employer shall provide accrued sick leave for the following purposes:
      • Mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests leave;
      • For diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventative care for, family member; or
      • Domestic violence, sexual offense, stalking, human trafficking, or to held family through these things.

If you would like additional information, please contact:

Marc W. Garbar, Esq., at 201-397-1424 (mgarbar@201employmentlaw.com)

Marc W. Garbar, Esq., is a partner with Brandon J. Broderick, Esq., LLC, and is the head of the firm’s employment law and business litigation practice group. Mr. Garbar has been practicing law as a labor and employment attorney for twenty-five (25) years.