On March 18, 2020, the federal Families First Coronavirus Response Act (FFRCA) was adopted. The measure was a quick and comprehensive response from our government to address the plight of thousands of employees that might otherwise be out of work as a result of sickness or to care for others due to the coronavirus. It is a significant expansion to provisions in the current Family and Medical Leave Act of 1993 (FMLA) leave policy, and while employers in New Jersey are well-acquainted with the state’s comprehensive protection for employees, including the New Jersey Family Leave Act (NJFLA) and New Jersey’s paid leave law, it is important for every employer to understand the additional benefits provided by the FFCRA.
When did the law come into effect?
While adopted on March 18, 2020, the law’s effective date is April 2, 2020. The United States Department of Labor has already issued guidelines on its implementation but all leave entitlements have a sunset date of December 31, 2020. Should the coronavirus crisis or its impacts continue, it is likely that the law will either be extended or modified at that time. The Department of Labor has published an employee notice which, as of April 1, 2020, was to have been posted conspicuously within each employer’s place(s) of business. Based upon the current crisis, it is recommended that the notice which can be found at DOL’s website- https://www.dol.gov/agencies/whd/posters, be sent out digitally to all employees.
Procedural changes
Because of the interplay between the FFRCA and existing FMLA rights and New Jersey state benefits, it is strongly recommended that the employer require each employee to complete a written form when requesting a leave. There are confusing interrelationships between each of the leave provisions under the various statutes, and it would be beneficial to both the employee and the employer for there to be a clear understanding of exactly the type of leave is being requested. Here at the firm we are fully prepared to work with all clients on drafting and implementing that leave request form.
Who does the leave apply to?
The law applies to all full-time and part-time employees. The benefits available to each employee differs depending upon his or her full or part-time status. A full-time employee is entitled to receive up to two weeks, or a maximum of 80 hours, leave time. Aa part-time employee may leave equal to the average weekly hours worked. The leave is extended to employees that have either lost their position or suffered a partial pay reduction as a result of their inability to work, including their inability to work remotely. An employer complying with the work at home requirements as directed by New Jersey Gov. Murphy in Executive Order 103 is directed to have all employees deemed nonessential work from home, and such direction, alone does not entitle the employee FFRCA leave. If however, the employee cannot work from home, then the leave is invoked. This must occur in one of several ways:
1. The employee is required to be quarantined and isolated under federal, state or local order. For this leave, the employee is entitled to full pay but not to exceed $511 per day.
2. The employee has been cautioned to self quarantine at the direction of a healthcare provider and as a result of COVID-19 exposure. Again, and with appropriate documentation, the employee is entitled to his or her regular pay rate but not to exceed $511 per day.
3. The employee has reported symptoms of COVID- 19 and is currently in the process of seeking medical advice. This employee is also entitled to his or her full pay, not to exceed $511 per day. Again, the employer form should set forth adequate factual information to substantiate this leave request.
4. The employee must care for an individual who is subject to a quarantine or isolation order described in paragraph 1, above. Here, the employee is entitled to two thirds of his or her regular pay rate, but not to exceed $200 per day. As all leaves provisions, this is a supplement to any other leave to which the employee is entitled , including but not limited to benefits under the New Jersey Paid Leave Act, any local collective bargaining agreement or company policy.
5. The employee is caring for a minor child or dependent who must remain home as a result of a school or educational closure and as a result of COVID- 19. For this leave, the employee is entitled to two thirds of his or her regular pay, up to $200 per day. This part of the law is actually an extension of the traditional FMLA leave.
6. Other conditions which may subsequently be issued through either the Department of Health and Human Services and/or the Department of Labor. This provision provides flexibility to expand the leave provisions to future instances similar to what is currently prescribed.
Expanded FMLA
In addition to expanding emergency paid leave, the Families First Act also made changes to the existing FMLA leave provisions. Now, any full or part-time employee may avail himself with FMLA leave so long as he has been employed by the company for at least 30 calendar days. There is no longer any prior requirement in terms of the number of hours worked, but, again, the basis for the leave must be COVID-19 related. The expanded FMLA is not available to an employee that does not otherwise qualify for FMLA leave when the basis for the leave is not associated with the coronavirus, and does not fit within one of the six qualifying conditions set forth above.
Paid leave expansion
As most employers know, the FMLA is not directly a monetary benefit but is a protection for employees compelled to leave the workforce temporarily to care for themselves or another and to provide them with job protection upon return. Now, there is a paid segment of leave under the FMLA. For the paid portion, this benefit will exist only during the actual declaration of a public health emergency.
For the first 10 days during the public health emergency, the FMLA leave is unpaid, just like the typical FMLA leave. Thereafter, eligible employees receive two thirds of their regular rate of pay for the number of hours that the employee would normally be scheduled to work, up to a maximum of $200 per day. The overall maximum that may be earned is $10,000. Again, this benefit is only available to an employee that cannot work either on-site or remotely because he or she needs to care for a minor child or other dependent as a result of a school or childcare closure and related to the public health emergency.
While New Jersey employers are or should be well ahead of the curve in terms of dealing with a substantial array of both paid and unpaid leave provisions under New Jersey law, this expansion of FMLA and the creation of FFRCA will most likely create many questions on how they all interrelate and how a New Jersey employer can best manage them. Here at Price Meese Shulman & D’Arminio, PC we are prepared to answer your questions, and encourage you to contact us.
The information provided in this article is not a substitute for legal advice and does not create an attorney-client relationship.
The attorneys at Price, Meese, Shulman & D’Arminio, PC, and its covid-19 legal response team are here to assist. The author, John Molinelli, is an attorney at Price Meese and can be reached at 201-391-3737 or via email jmolinelli@pricemeese.com.
