Coronavirus Legislation Requirements for Paid Sick and FMLA Leave

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As part of Congress’ recent legislation to address the coronavirus pandemic, passed by both houses and signed into law by the President, certain employers must grant employees paid sick leave or paid FMLA leave used for a COVID-19 related reason. The legislation went into effect starting April 1, 2020. 

Who the Legislation Covers

The legislation applies to all private employers engaged in “commerce” with fewer than 500 employees, as well as to all public employers. The law uses the regular FLSA definition of an “employee;” an employer’s count of “employees” is made at the time that the worker uses paid sick or FMLA leave. However, the law applies to a wider set of employees than regular FMLA leave. Any employee of a covered employer may use paid sick leave, even if the employee has only been employed for a single day. A worker may use paid FMLA leave provided they have been employed for at least 30 calendar days.

Certain employers are expressly excluded from the scope of the legislation. Any employer that employs a health care provider or an emergency responder may choose to exclude that employee from the application of the new law. In addition, the Secretary of Labor has the option to exempt small businesses with fewer than 50 employees if applying the law to that business would “jeopardize the viability of the business as a going concern.”

Sick and FMLA Leave Requirements

Under the law, covered employees are entitled to up to 80 hours (or for a part-time employee, the average number of hours he or she works in a two-week period) of paid sick leave if they are infected with coronavirus. In addition, the law amends FMLA benefits to allow employees to take FMLA leave with two-third pay if they are unable to work due to the need to care for a child whose school or childcare services are closed due to coronavirus. However, leave pay is capped both on a daily basis and in the aggregate over the employee’s entire leave period according to the following schedule:

• If an employee takes leave to a government isolation or quarantine order due to COVID-19, is advised by a medical provider to self-quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and is awaiting diagnosis, the employee will be paid the greater of their regular rate of pay or the applicable minimum wage, up to a maximum of $511 per day and $5,110 in the aggregate over a two-week period
• If an employee takes leave to care for someone in isolation or quarantine due to COVID-19 or is otherwise in a condition or situation specified by the HHS Secretary, the employee will be paid at the greater of 2/3 their regular rate of pay or 2/3 the applicable minimum wage, up to a maximum of $200 per day and $2000 in the aggregate over a two-week period.
• If an employee takes leave to care for a child whose school or childcare has been closed or is unavailable, the employee will be paid the greater of 2/3 their regular rate of pay or 2/3 the applicable minimum wage, up to a maximum of $200 per day and $12,000 in the aggregate over a 12-week period.

Qualifications for Covered Leave

The law lists qualifying reasons under which a worker may use paid sick leave or paid FMLA leave. 

An employee can take sick leave if he or she is unable to work or telework because:

• He or she is subject to a COVID-19-related quarantine or isolation order
• He or she has been advised by a health care provider to self-quarantine due to COVID-19-related concerns
• He or she has experienced symptoms of COVID-19 and is seeking a diagnosis
• He or she is caring for an individual who is subject to an above-described order or recommendation
• He or she is caring for a child whose school or daycare or child care provider is unavailable due to COVID-19 precautions

An employee may take paid FMLA leave if he or she is unable to work or telework due to the need to care for a child if the child’s school or place of care is closed or unavailable due to a public health emergency. The employee is deemed unable to work or telework if:

• His or her employer has work available and one of the qualifying reasons set forth in the FFCRA prevents the employee from performing that work at his or her normal worksite or by telework, or
• The employee agrees to work outside his or her normally scheduled hours but a COVID-19-qualifying reasons prevents the employee from working that schedule

If an employee is furloughed or the employer’s business closes, employees may not take paid sick or FMLA leave. Although an employer can give employees the option to use their employer-provided paid leave to increase their pay, employers cannot require employees to do so.

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A workplace injury can be devastating, particularly if it prevents you from returning to work for an extended period of time. Although New Jersey workers’ compensation laws are supposed to provide you with reimbursement for medical expenses and replacement pay for missed time at work, it is not always easy to get the workers’ comp benefits you deserve. That is why you should speak with our knowledgeable Paramus NJ Accident Attorney about your situation and get guidance throughout the claims process. The experienced workers’ compensation attorneys at the Epstein Law Firm, P.A. represent clients in Hackensack, Paramus, Rochelle Park, Ridgewood, and all across New Jersey. Call 201-231-7847 or fill out our online contact form today to schedule a consultation about your work injury case. Our main office is located at 340 West Passaic Street, Rochelle Park, NJ 07662.

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.