The Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18, 2020 (and expires December 31, 2020), consists of two separate laws applicable to employers with fewer than 500 employees. This law is effective no later than 15 days after the bill was signed into law; i.e., Thursday, April 2, 2020. However, it is unclear at this time exactly when the law will be deemed to take effect. The following is a very brief summary of the important takeaway points for the millions of employees and employers this law will affect.
Emergency Family and Medical Leave Expansion Act
The first law is an expansion to the Family Medical Leave Act. The Emergency Family and Medical Leave Expansion Act (EFMLEA), which requires that employers with fewer than 500 employees provide employees who have worked for a minimum of 30 days with 12 weeks of leave for a “qualifying need related to a public health emergency.” The first 10 days of leave may be unpaid, but each subsequent day must be paid at no less than the two thirds of the employee’s regular rate of pay and based upon the employee’s normal hours he or she would otherwise have worked. The paid leave is capped for each employee at $200 per day and $10,000 in total.
Emergency Paid Sick Leave Act
The second law adds a paid sick leave obligation on employers and is significantly broader. The Emergency Paid Sick Leave Act (EPSA) requires employers with fewer than 500 employees to provide full-time employees with 80 hours of paid sick leave, and part-time employees with 30 hours of paid sick leave, for the following reasons:
- the employee is subject to a federal, state or local quarantine or isolation order
- the employee has been advised to self-quarantine by a health care provider
- the employee is seeking a medical diagnosis for symptoms of COVID-19
- the employee is caring for someone who has been advised or ordered to quarantine
- the employee is caring for a son or daughter whose school or place of care has closed, or whose childcare provider is unavailable, because of COVID-19 precautions
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services
The EPSA has no minimum work requirement, and thus is available to any employee no matter how briefly that employee has worked for the employer. It also has no accrual period, meaning that it must be made available to employees immediately.
If the employee requests leave for any of the first three reasons, then the employee’s paid sick time is capped at $511 per day and $5,110 in total. If the employee requests leave for any of the remaining reasons, then the paid sick time is capped at $200 per day and $2,000 in total. Note, part-time employees are entitled to paid sick time equivalent to the number of hours he or she works on average over a two-week period. Note also, employers cannot require employees to use other forms of paid sick leave under the EPSA.
Just as with other employment laws, the EPSA requires employers to post notices of the employee’s statutory rights in conspicuous places within the workplace. Also similar to other employment laws, the EPSA contains an anti-retaliation provision making it unlawful to retaliate against employees exercising their rights under the statute.
It is also important to note that this law also applies to self-employed persons, who are eligible for a refundable tax credit equivalent to up to two weeks of sick pay at person’s average pay, and twelve weeks of family leave pay at 67% of the person’s average pay. This tax credit is subject to the same limitations as ordinary employees; that is, there is a $511 per day cap for sick leave and a $200 per day cap for family leave.
The law allows for the Secretary of Labor to issue regulations exempting small businesses (businesses with fewer than 50 employees) where the provision would “jeopardize the viability of the business as a going concern.” Once those regulations have been issued, we will have more guidance as to this issue.
To offset the harm this will clearly impose on small businesses that are likely already suffering economic decline due to COVID-19, the FFCRA provides employers with an opportunity to obtain a refundable tax credit against payroll taxes for each calendar quarter for the percent of qualified sick leave wages the employer pays within that calendar quarter.
Contact an Employment Law Attorney to Discuss Your COVID-19 Concerns in New Jersey
This law presents several unanswered questions and concerns to employers and employees alike, not the least of which is: what happens to an employee who is terminated or laid off before the effective date of the law? Needless to say, successfully navigating your rights and responsibilities under this new law will be difficult, and most would be well-advised to seek the expertise and experience of an employment attorney. If you have questions or concerns regarding this or any other employment law, don’t hesitate to contact the employment attorneys at Attorneys Hartman, Chartered at 856-235-0220 or fill out our online contact form. We have an office located at 68 E. Main Street Moorestown, NJ 08057.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.