Coronavirus and Employment Laws
What You Need to Know
According to the Center for Disease Control (CDC), the Coronavirus Disease 2019 (COVID-19) is a respiratory disease that spreads most frequently through person to person contact when individuals are within six feet or less of one another. It can be transmitted through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it, and then touching their own mouth, nose or possibly their eyes.
Since the spread of COVID-19 has surged over recent weeks, there have been widespread effects throughout the country.
Families First Coronavirus Response Act
In response to the coronavirus outbreak, on March 18, 2020 President Trump signed the “Families First Coronavirus Response Act” (FFCRA)providing American workers with paid sick leave and free coronavirus testing, expanding food assistance and unemployment benefits, and requiring employers to provide additional protections for health care workers.
Generally, the FFCRA Act provides that employees of covered employers are eligible for:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of paybecause the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid expanded family and medical leaveat two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Categories of compensation to employees seeking leave under this new law include the following:
- Employees who are sick or seek a diagnosis can receive their required compensation for regularly scheduled work hours up to $511 daily.
- Employees caring for a family member can receive their required compensation for regularly scheduled work hours receive up to $200 daily.
- Employees caring for a child whose school is closed can receive their required compensation for regularly scheduled work hours up to $200 daily.
Generally speaking, the FFCRA’s leave benefits apply to workers in companies of various sizes, as well as government workers, employed for at least thirsty (30) days with their current employer. Full-time, part-time, freelancers and self-employed individuals qualify for relief.
Small businesses made up of 50 or fewer employees, however, may be exempted from paying sick leave associated with school closings if “the imposition of such requirements would jeopardize the viability of the business as a going concern.”
Under FFCRA employers cannot require employees to use or exhaust their paid time off (e.g., accrued sick time, vacation time, or personal time) before availing themselves of paid leave under the law. The law also prohibits employers from retaliating against employees who exercise their rights and attempt to claim FFCRA benefits.
Employers offering paid sick leave will be reimbursed in full, within the annual quarter in which the payments were made, through a payroll tax credit. However, tax credits taken as a result of paid family leave may not exceed the sum total of $10,000 per employee. FFCRA’s paid leave benefits, which are temporary, will remain in effect through December 31, 2020.
Employers are required to conspicuously post notices of the coronavirus sick leave provisions.
Coronavirus Aid, Relief, and Economic Security Act
On March 27, 2020, President Trump signed the “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act). The CARES Act provides financial benefits for those who have been hurt by COVID-19, including enhanced unemployment compensation benefits. The CARES Act provides for:
Pandemic Unemployment Assistance Program
The CARES Act creates a temporary Pandemic Unemployment Assistance program to provide payment to those not traditionally eligible for unemployment benefits who are unable to work as a direct result of COVID-19. The Act also provides enhanced benefits for all workers eligible for unemployment. Unlike the Families First Coronavirus Response Act (FFCRA), which only applies to private employers with fewer than 500 employees, the CARES Act applies to all employers regardless of size.
The CARES Act extends coverage to workers who are self-employed, seeking part-time employment (if permitted under state law), do not have sufficient work history, or otherwise would not qualify for regular unemployment under state or federal law and become unemployed or cannot find work due to COVID-19. This provision covers independent contractors.
Covered individuals will receive benefits for weeks of unemployment, partial unemployment, or inability to work caused by COVID-19 beginning on or after January 27, 2020 and ending on or before December 31, 2020, for as long as the unemployment, partial unemployment or inability to work caused by COVID-19 continues.
Unemployment Expansion for All Eligible Workers
The CARES Act also enhances unemployment compensation benefits for all eligible individuals. The enhanced benefits include an additional $600 per week (even if this takes the employee above their pre-unemployment earnings level), the elimination of waiting periods (a measure many states already have taken), and an additional 13 weeks of eligibility for benefits (39 weeks in total).
Additional Eligibility Considerations
Employees who are able to telework with pay and those who are receiving Emergency Paid Sick Leave (EPSL) or FMLA-Public Health Emergency Leave under the FFCRA, or are receiving paid leave under an employer plan or state or local law, cannot simultaneously receive unemployment benefits under the CARES Act.
Many jurisdictions, including New Jersey, have ordered that certain businesses deemed to be non-essential retail, recreational and entertainment businesses (such as hair salons, casinos, gyms, theatres, shopping malls, etc.) must close to the public until further notice. Most jurisdictions have placed restrictions on restaurants and other dining establishments to delivery and take out only.
To the extent that a business remains open, such businesses should work from home (“telework”) whenever practicable. When an employee cannot perform their work functions at home, the business should make best efforts to reduce staff onsite to the minimal number necessary to ensure that essential operations can continue.
Best Practices for Essential Businesses That Remain Open
The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard that requires certain employers to develop and implement a comprehensive infectious disease exposure control plan to protect health care workers, called “Guidance On Preparing Workplaces for COVID-19.” Among other things, it includes steps all employers can take to reduce workers’ risk of exposure to COVID-19.
- Develop an Infectious Disease Preparedness and Response Plan
- The plan should consider and address the level of risk associated with various worksites and job tasks workers perform at those sites (occupational risk factors). The plan should also consider the workers’ individual risk factors (old age; presence of chronic medical conditions, pregnancy, etc.)
- The plan should follow federal, state and local recommendations regarding plans that may arise out of outbreaks.
- Develop policies and procedures for prompt identification and isolation of sick people. Employers should inform their employees to self-monitor for signs and symptoms of COVID-19.
- Employers should develop policies and procedures to report when they are sick or experiencing symptoms of COVID-19.
- Take steps to limit respiratory secretions of a person who may have COVID-19. Provide face mask and allow person to wear it, if feasible.
- Protect workers in close contact with a sick person by using safe work practices and PPE.
- Order sick employees to stay home.
- Establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time.
- Minimizing contact among workers, clients and customers by replacing face to face meetings with virtual communications and telework if feasible.
- Provide workers with updated education and training on COVID-19 risk factors and protective behaviors.
- Training workers on how to use protective clothing and equipment.
SAFE WORK PRACTICES
Safe work practices are administrative controls that include procedures for safe and proper work used to reduce the duration, frequency, or intensity of exposure to a hazard. For example, providing tissues, no-touch trash cans, hand soap, alcohol-based hand rubs containing at least 60 percent alcohol, disinfectants, and disposable towels for workers to clean their work surfaces, and requiring regular hand washing or using of alcohol-based hand rubs.
Personal Protective Equipment – PPE
PPE may also be necessary to prevent exposure to COVID-19 for certain employees. Examples of PPE include: gloves, goggles, face shields, face masks and respiratory protection. During this COVID-19 pandemic, it is important for employers to check the OSHA and CDC websites regularly for updates about recommended PPE.