Categories: Paid Sick Leave
September 4, 2020
COVID-19 has redefined the term “back to school” this year. On August 27, 2020, the Department of Labor (“DOL”) Wage and Hour Division updated is Guidance and added FAQs 98-100 to address employer and employee questions as schools implement remote, in-person and combined learning options.
The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, part of the Families First Coronavirus Response Act (the “FFCRA”), applies to employers with fewer than 500 employees and to leave taken between April 1, 2020 and December 31, 2020. FFRCA provides eligible employees with both up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave (10 of which are paid) if an employee needs to “care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.”
According to the DOL, the FAQS “issued” specifically address “qualifying for paid leave when a child attends a school operating on an alternate day basis; a parent chooses remote learning when in-person instruction is available; and a school begins the year with remote learning but may shift to in-person instruction if conditions change.”
Children with Alternating or Hybrid Attendance (FAQ 98)
Employees with a child who attends a school that operates on an alternate-day or other hybrid schedule, may take paid leave under the FFCRA on the days that his/her child “is not permitted to attend school in person” and must participate remotely instead provided that no other suitable person is available to take care of the employee’s child. For the purposes of the FFCRA, the “school is effectively closed” on the days when the employee’s child cannot attend.
Employees Who Choose Remote Learning Over In-Person Attendance (FAQ 99)
If the school provides both in-person and remote learning options at the parent’s election, and the employee chooses the remote option due to COVID-19 concerns, the employee is not entitled to paid FFCRA paid leave. The rationale is that the school is, in fact, open. However, if the child is under a quarantine order or medical directive to self-isolate the employee may be eligible for paid leave if no other adult is available to care for the child.
Children with Remote Learning Option Only but Subject to Change (FAQ 100)
If the school announces that the school year will start out remotely due to COVID-19 concerns, but may open later in the year, the employee may take paid leave under FFCRA while the school remains closed. Later, if the school reevaluates its decision and decides to open, the availability of FFCRA leave “will depend on the particulars of the school’s operations” as discussed in FAQ 98 and 99.
If, prior to the start of the school year, an employee has already exhausted his/her FFCRA leave, the employee is not entitled to additional leave merely because a new school year is beginning. Finally, as stated above, FFCRA leave obligations remain in effect until December 31, 2020 unless extended by Congress. As such, any “replenishment” of paid leave, whether to address school-related issues or otherwise, is a matter for Congress.
The foregoing information is current as of the date published. For up-to-date information, please be feel free to contact us.
April 7, 2020
The U.S. Department of Labor has published “temporary regulations” to explain how small businesses (fewer than 50 employees) may exercise the exemption from certain leave obligations under the Families First Coronavirus Response Act (“Families First Act”).
As previously reported, the Families First Act has two leave components: paid leave under the Emergency Paid Sick Leave Act (“PSLA”), and paid and unpaid leave under the Emergency Family and Medical Leave Expansion Act (“EFMLA”).
A small employer (less than 50 employees) is exempt from the PLSA’s and EFMLA’s leave requirements if the requested leave would jeopardize the viability of the business as a going-concern. Importantly, the exemption applies only to child-care related leave, where an employee is unable to work or telework due to the need to care for his/her minor child whose school/daycare has been closed or whose childcare provider is unavailable as a result of COVID-19. (PSLA qualifying reason #5, and EFMLA’s only qualifying reason).
A small employer may invoke the carve-out if an authorized officer of the business determines that:
The DOL’s regulations require a small employer seeking to invoke the exemption to document its determination, including which of the above criteria it relied on. At this time, employers need not send the documentation to the DOL but must retain it, presumably in the event of a future DOL inquiry or audit.
Finally, all employers, including small employers exercising this exemption with respect to one or more employees, must post (or deliver via email) the DOL’s poster informing employees of these new laws which can be found here.
April 2, 2020
Yesteray, the U.S. Department of Labor (“DOL”) announced a “new action” regarding the protections and relief available under the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (“FFCRA”). The Department’s Wage and Hour Division “posted a temporary rule issuing regulations pursuant to the new law, effective April 1, 2020,” available here.
FFCRA requires all private employers with less than 500 employees (subject to exemptions) to provide up to 80 hours (or 10 days) of paid sick leave for a “qualifying reason” related to COVID-19. In exchange, employers will receive a “tax credit” for the cost. According to the DOL, “[t]he legislation will ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, while at the same time reimbursing businesses.”
For any questions regarding your obligations under FFCRA, please feel free to contact any member in our Labor and Employment Practice Group.
March 26, 2020
As we all continue to struggle with the impact of the coronavirus, the pandemic has highlighted why employers must stay vigilant with regard to updating their personnel policies and employee handbooks.
Those businesses considering furloughs (unpaid leaves of absence), individual terminations and/or downsizings must consider whether those affected have written employment agreements and whether they are covered by any stand-alone personnel policies or policies contained within an employee handbook. This must be done while at the same time analyzing numerous employment statutes and laws. For example, what does an employee’s contract say about the right to terminate with or without cause? What does it provide for vacation and sick pay? Similarly, what does your businesses personnel policies and handbooks say about whether the company must pay paid time off, vacation and/or sick days if an employee is terminated?
Once an employer understands its contractual obligations, an analysis must be done of state paid sick leave laws, wage and hour laws, whether the adverse employment action could result in a discrimination or retaliation claim or implicates the WARN Act, whether it complies with the new Families First Coronavirus Response Act (“FFCRA”), enables those terminated to receive the benefits of the stimulus package that should be approved tomorrow, and on and on.
While it may or may not be too late to change an employers’ employee handbooks now to deal with immediate employment actions that employers are considering, it is important to make certain immediate changes that could protect the company as we continue down the rocky road still ahead of all of us as a result of the pandemic.
Employers who wish to have their personnel policies and employee handbooks reviewed should contact Steven Adler at email@example.com.
March 25, 2020
As we previously reported, on March 18, 2020, effective immediately, all New York employers must provide sick leave for any employee (with limited exceptions) “who is subject to a mandatory or precautionary order of quarantine or isolation issued by New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.”
New York’s Short-Term Disability and Paid Family Leave have also been expanded to provide these leave benefits for employee absences due to COVID-19 related quarantine/isolation.
Governor Cuomo’s “New York State on PAUSE” Executive Order 202.6 of Friday, March 20, 2020, also known as the “Stay-At-Home” Executive Order (the “Executive Order”), required all non-essential businesses to close by 8 p.m. beginning on March 22, 2020, and for all of their employees to stay home and work remotely if possible.
Since the COVID-19 Paid Leave Law extended disability and paid family leave benefits to employees under quarantine or isolation required by the State; and since the Executive Order required all non-essential workers to stay home; it was initially interpreted that all employees subject to this Executive Order would be entitled to this Leave.
However, the New York Department of Labor (NYDOL) has now issued a “correction” that the expansion of disability and paid family leave under the COVID-19 Paid Leave Law, does not apply to all employees who have been ordered to stay home under the Executive Order; even though it is clearly a state order of quarantine or isolation for all workers to “stay home,” except for workers in essential businesses. NYDOL now corrects its prior announcement and says that these benefits only apply to employees who have an individualized order of quarantine or isolation.
We expect this is not the first roll-back “correction” or interpretation” we are going to see as the government calculates the cost of providing these benefits under this and other emergency statutes.
March 25, 2020
Today, the U.S. Department of Labor’s Wage and Hour Division announced “its first round of published guidance” to provide information to employees and employers about the protections and relief offered by the Families First Coronavirus Response Act (“FFCRA”) when it takes effect on April 1, 2020.
The FFCRA requires private businesses with fewer than 500 employees to provide eligible employees with paid leave under its two component parts, the Emergency Paid Sick Leave Act and the Family and Medical Leave Expansion Act, in exchange for which employers will receive tax credit. The legislation is intended to support employees during the pandemic while offsetting employers for the cost of the new benefits.
The guidance includes:
A Fact Sheet for Employees
A Fact Sheet for Employers
A Questions and Answers (FAQ) that addresses specific questions relevant to both employers and employees
March 24, 2020
Facing the impact of COVID-19 while wishing to reserve the capacity of New Jersey’s health care system for the most vulnerable, Governor Phil Murphy on March 21st signed Executive Order No. 107 which directs all New Jersey residents to stay at home until further notice. This unprecedented measure effectively puts many New Jersey workers and their employers out of work or out of business with the exception of those performing “essential services” or whose workers can perform services remotely from their homes.
Employers that do not fit into these exceptions now face potentially massive losses and the need to address employment issues with now idled employees. Employers want to know what they can/must do under such circumstances. Contract law and New Jersey’s complex and comprehensive employment laws, such as the NJ Paid Sick Leave law, create substantial legal impositions for employers.
An employer’s first step should be to evaluate each employee’s current status. Termination may be necessary, but assuming that it is intended for the employee to resume employment once conditions permit, how should the termination be classified? A term that is frequently applied to such circumstance is “lay off.” But what is that?
In the absence of contractual authority, a lay-off is frequently defined to be an involuntary employment separation occurring through no fault of the employee. A “temporary” lay-off implies the parties’ intention that the affected employee will be re-employed once conditions permit. Laid-off employees are usually eligible to collect unemployment compensation up to a maximum of 26 weeks or until re-employed if sooner.
In the turmoil and confusion of the present time, employers are attempting assess what must be done to survive. As a first step, determine what is owed to employees, starting with a review of the Company’s Employee Handbook if one exists and other pay policies. What do these policies say regarding the grant of non-statutory paid time off (PTO)? New Jersey law permits the forfeiture of unused PTO days if employment has ceased for any reason provided the policy provides for such forfeiture. If an employee has the protection of a written employment agreement, such agreement may address the issue of severance. It is not too late to revise your Handbook (at least prospectively) provided the Handbook expressly states that it is not a contract and may be revised at any time.
Regarding New Jersey’s Paid Sick Leave Act, the law provides that payment must be made for:
…Time during which the employee is not able to work because of a closure of the employee's workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee's family in need of care by the employee, would jeopardize the health of others….
While there is and should be much concern for the welfare of the affected employees, many employers now face a struggle to survive. Effective on April 2, 2020, the Families First Coronavirus Response Act (“FFCRA”) wil l go into effect . This decisive Congressional action creates two new programs: first, the grant of ten (10) paid sick days for employees to permit the paid absence from work due to personal or familial COVID-19 illness issues; and second, the grant of a very liberalized paid family leave for all employers with 500 or less employees and covering virtually all employees who have worked for 30 or more days.
The law provides for possible recompense to employers for such costs through tax credits and/or possible tax refunds if credits are insufficient, but such relief will not be realized tor at least 90+ days. In many cases, smaller employers in particular may not survive to receive such benefit.
The FFCRA will be effective as of April 2nd. We expect that it will be applied only prospectively. Struggling employers must carefully consider whether layoffs should be imposed before that law is effective as a defensive measure. Waiting until the effective date will guarantee the payment of two weeks’ pay to all employees who are still employed as of that date (unless it is determined that employees can be terminated while being paid pursuant to the FFCRA) plus the possible grant of the many other benefits attendant to the drastically revised FMLA: paid leave under certain circumstances at 2/3rds pay plus the possible continuation of health insurance for a maximum of 12 weeks.
These are difficult times for both employers and employees. Unfortunately, the hope of survival may require strategic actions that are very unpleasant and difficult. All legal and economic exposures must be carefully reviewed, and there is little time to take such action.
Please speak with a Member of the Mandelbaum Salsburg's Employment Law Department for further advice.
March 22, 2020Federal Families First Coronavirus Response Act (the “Family First Act” or “Act”) was signed on March 18, 2020. The Act’s employment provisions become effective no later than April 2, 2020 and last until December 31, 2020.
March 21, 2020
Much has been written the past few days about the Families First Coronavirus Response Act (“FFCRA” or the “Act”). As we have reported, the Act provides two specific benefits for employees of companies with less than 500 employees. First, it provides paid sick leave of up to ten (10) days in addition to whatever paid sick leave states may have already granted by statute. Second, it provides for paid family leave but only under very limited circumstances. There is an exemption, however, for “health care providers” and emergency responders. The Mandelbaum Salsburg Coronavirus Task Force has fielded many questions since our Webinars this past week concerning the breadth of the exemption and how it works.It is clear the exemption was included in the law to keep health care providers and emergency responders at work and on the front lines to fight the pandemic. Obviously, we don’t want to force those providers who have the virus to expose others. However, the law did not want to give health care providers and emergency responders the unfettered right to stay home and be paid to care for healthy children who are unable to go to school or childcare because of the coronavirus. Both the paid sick leave and paid family leave provisions of the Act allow those who are not health care providers or emergency responders to receive these benefits at least to the extent that they cannot telework.
March 18, 2020
Effective immediately, and with limited exceptions, all New York employers must provide sick leave for any employee “who is subject to a mandatory or precautionary order of quarantine or isolation issued by New York, the department of health, local board of health, or any governmental entity duly authorized to issue such an order due to COVID-19.
The amount and type of sick leave (paid or unpaid) depends on the number of employees a business had as of January 1, 2020. In addition, businesses with ten or fewer employees must look at their 2019 net income. Based on those variables, employers must provide sick leave as follows:
Supplemental Sick Leave Benefit. These new benefits are in addition to any other sick leave already provided by the employer. They must be provided without loss to any other accrued sick leave.
Both the federal Families First Coronavirus Response Act, and the New York-specific act were passed on March 18, 2020. In anticipation of the federal act, the New York law provides that to the extent it overlaps with any federal sick leave and/or employee benefits law “related to COVID-19” the New York “quarantine law” benefits are “not available…provided, however, that if the provisions” of New York’s law provides for “sick leave and/or employee benefits in excess of the benefits provided by the federal [act]” an employee is entitled to “to claim such additional sick leave and/or benefits” in the amount of such difference.
Exceptions. New York’s leave law does not apply to an employee who is:
Reinstatement. In addition,employees returning from this leave must be restored to the position they held prior to taking the leave, with the same pay and other terms of employment. Discrimination or retaliation for taking or requesting leave is prohibited.
Finally, employers should be aware that New York’s Short-Term Disability and Paid Family Leave programs have been expanded to provide coverage for COVID-19 quarantine-related absences (for more information see here).
March 16, 2020
Late Friday, the United States House of Representatives passed a relief bill aimed at containing the widening effects of the coronavirus on the United States economy and public health. The bill H.R. 6201, the Families First Coronavirus Response Act, is supported by President Trump and still needs to pass the Senate.
Here are some of the key features of the bill:
March 3, 2020
Employers should be gearing up for a possible outbreak of coronavirus in their geographic areas. This includes establishing certain safety precautions as well as issuing a policy concerning certain protocols to be followed in the workplace. The policy should include:
Policies need to be in conformity with the requirements of the Americans with Disabilities Act (“ADA”) and state disability laws such as the New Jersey Law Against Discrimination (“NJLAD”) concerning inquiring about employee’s health and the need to provide any reasonable accommodations. Leaves of absence also may be necessary and must comply with the federal Family and Medical Leave Act (“FMLA”) for employers with at least fifty (50) employees and the New Jersey Family Leave Act (“NJFLA”) for employers with at least thirty (30) employees. Employers should also review the EEOC’s guideline entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” We are here (or working remotely) should you need further guidance.
November 29, 2018
The New Jersey Department of Labor and Workforce Development ("DOL") has published a list of Frequently Asked Questions ("FAQs") intended to address various unanswered (and unclear) questions regarding the new Sick Leave Law.
The FAQs are available at:
The DOL's mandatory workplace poster is available at:
Naturally, if you have any questions regarding your obligations or rights under the Sick Leave Law, or other employment-related laws, please do not hesitate to contact any member of the Firm's Employment Law Group.
November 14, 2018As the weather gets colder and the days shorter, the end of the year can’t be too far away. Now is a good time to start reviewing your Company’s personnel policies so that your house can be in order to start the new year.
October 9, 2018
Every employer in New Jersey, regardless of size, needs a written Paid Sick Leave policy in place and distributed to employees no later than October 29, 2018. Please contact us if you need assistance drafting this policy or updating your other personnel policies.
Whether as stand-alone policies or those accumulated in an employee manual, the following are the types of policies which must, or at the very least should, be in writing in NJ:
June 13, 2018
New Jersey’s Sick Leave Law (the “Law”) takes effect on October 29, 2018. It establishes a uniform, state-wide law that pre-empts all municipal sick leave laws and prohibits the passage of similar, local laws.
Who is Covered?
The Law applies to all NJ employees (full and part-time) and any business with NJ-based employees (regardless of size). The only exclusion are construction industry employees covered by a collective bargaining agreement, per diem healthcare workers, and public employees who already receive this benefit.
How is Time Accrued?
Employees accrue one (1) hour of paid sick leave for every thirty (30) hours worked, up to forty (40) hours (five days) in a benefit year. Alternatively, an employer may "frontload" the entire forty (40) hours on the first day of a benefit year (as well as implement a more generous program).
A “benefit year” is any 12 consecutive months designated by the employer. Once established, an employer may only change the “benefit year” by first notifying the NJ DOL.
Sick leave benefits begin to accrue for:
Employers must either (a) allow up to 40 hours to carry over from one benefit year to the next or (b) pay employees for that time. It is the employee’s choice which alternative to accept.
Employers may comply with the Law if they already offer employees paid sick leave or paid time off (“PTO”) that accrues at a rate equal to or greater than one (1) hour of leave per 30 hours worked, and the policy is otherwise consistent with the Law.
“Sick Leave” Uses?
Earned sick leave may be used for:
“Family members” is broadly defined to include an employee’s child, spouse, domestic partner, civil union partner, parent (including adoptive, foster or step-parent, or legal guardian), sibling (including foster or adoptive siblings), grandparent or grandchild, and the parent, grandparent or sibling of the employee’s spouse, domestic partner or civil union partner. Indeed, an employee may also use their sick leave for the care of a non-related individual whose close association with the employee is the “equivalent” of a family relationship.
What May Employers Do?
Employers are subject to private claims, and the penalties and remedies contained in the New Jersey Wage and Hour Law, including fines and possible imprisonment.
Employers with NJ-based employees should review and adjust their current paid time off policies to ensure compliance with the New Jersey Sick Leave Law prior to October 29, 2018.
May 29, 2018
How healthy is your Company? Does it comply with all of its obligations under ever-expanding employment laws? Considering all of the recent developments in New Jersey and New York employment law, now is an appropriate time to take your Company’s temperature.
If your Company has an employee manual, now is the time to update it especially considering that New Jersey and New York recently passed legislation dealing with paid sick leave which may impact your current sick leave policy.
As a result of the #Metoo movement, and as reported recently in this blog, there have been significant changes concerning having employees sign settlement agreements in sexual harassment cases or separation agreements containing non-disclosure/confidentiality provisions waiving these claims. Both New York and federal law have changed in this regard. It is, therefore, important to review any form releases your Company uses when terminating employees.
As also reported previously in this blog, the law also has changed concerning equal pay. In New Jersey, it will not only apply to women who are paid less than men but also all other protected classes in the New Jersey Law Against Discrimination. It is, therefore, important to take your Company’s temperature with regard to employee pay.
Lastly, based upon an executive order recently signed by Governor Murphy organizing a task force to review the issue of misclassification of workers, we expect a crackdown on employers who misclassify workers as independent contractors. Now is the time to review those relationships as well.
In summary, having experienced legal counsel help in taking your Company’s temperature now will enable your Company to avoid costly litigation not too far down the road.
May 16, 2018
On May 5, 2018, NYC’s Earned Safe and Sick Time Act (the “ESSTA”) went into effect. It amends NYC’s Earned Sick Time Act by (a) permitting an employee to use accrued “sick leave” for “safe leave” and (b) expanding the definition of “family member.” Employers are required to provide notice to employees by June 4, 2018.
Under the ESSTA, employees have the right to use leave for the medical care of themselves or a family member, as well as the right to seek assistance or take other safety measures if the employee or a family member is a victim or has been threatened with domestic violence, “unwanted sexual contact”, stalking or human trafficking.
“Safe leave” includes absences to:
“Family member” is now defined as:
Employers with five (5) or more employees must provide up to 40 hours of paid sick/safe leave; all other employers must provide up to 40 hours of unpaid sick/safe leave.
For more information, see: http://www1.nyc.gov/assets/dca/downloads/pdf/about/Paid-Safe-and-Sick-Leave-Law-Rules.pdf