As one of the many unfortunate results of the coronavirus pandemic, employees nationwide will be laid off or otherwise furloughed. Consequently, the governors of New York, New Jersey and Connecticut have signed into law measures to help ease the disruption to employees and their employers. Michelman & Robinson provides an overview.
Days ago and in response to COVID-19, New York Governor Andrew Cuomo signed S8090 (the NYPLL), which establishes paid sick leave for New Yorkers. The first part of the law is specific to unemployment due to the coronavirus. The Senate bill includes a second phase that will go into effect later this year and pertains to New York’s decision to implement a general and on going paid sick leave law for workers statewide.
Effective immediately, the NYPLL will provide fairly generous paid sick leave to employees and guarantee access to New York’s Paid Family Leave Benefit Law and disability benefits for all eligible employees (e.g., those subject to a mandatory or precautionary order by any authorized governmental entity of quarantine or isolation for COVID-19). Though the law does not apply to freelancers, its benefits for eligible employees last “until the termination of any mandatory or precautionary order.”
Note that the NYPLL does not apply to asymptomatic employees able to engage in their regular duties from a remote location; for example, the lawyer writing this client alert who is working from home.
Employer Paid Leave
Employer paid leave benefits under the NYPLL can be summarized as follows (numbers based on the previous tax year):
|No. of Employees as of 1/1/20||Annual Revenue||Benefit|
|10 or less||Less than $1M||5 days unpaid|
|10 or less||More than $1M||5 days paid|
|11 to 99||N/A||5 days paid|
|More than 100||N/A||14 days paid|
Upon their return to work, employers must restore their employers to the same or similar positions they held prior to any leave. In addition, employers may not retaliate or discriminate against any employee taking leave under the NYPLL. That being said, the NYPLL does not prevent layoffs or terminations of employment because of the closing of a business.
State Paid Leave
All impacted employees “shall be eligible for paid family leave and disability benefits” payable from their employers’ New York State mandated family leave and disability policies. These benefits commence once employer-provided paid benefits run out. If leave is unpaid, then state benefits are available immediately. The NYPLL amends the New York Workers’ Compensation law (NYWCL) to define “disability” as “any inability of an employee to perform the regular duties of his or her employment as a result of a mandatory or precautionary order of quarantine or isolation.” Benefits are payable on the first day of a disability.
The NYPLL further amends the NYWCL to include family leave. Such leave means (1) any leave taken by an employee from work when that employee is subject to a mandatory or precautionary order of quarantine or isolation, or (2) to provide care for a minor dependent child of an employee who is subject to a mandatory or precautionary order of quarantine or isolation.
Disability and Family Leave Benefits Are Payable Concurrently
Employees may apply for both forms of benefits—family and disability leave—at the same time. Depending on the amount of their regular wages, employees are eligible to receive up to $840.70 per week in family leave. With regard to disability benefits, and again depending on the amount of their regular wages, employees are eligible to receive up to a maximum of $2,043.92 per week. Combining the two and depending on income, the maximum weekly benefit would be $2,884.62.
How to Apply
Employers are required to inform their employees of the benefits available to them under the NYPLL. For their part, employees can apply by going online and filling out two forms, which include sections to be completed by the employer and the employee. The forms can be found here and here.
Employers must provide the applying employee’s average weekly wage. This is done by adding the wages for the eight weeks prior to the start of family leave and dividing the total by eight. For a sole proprietor who has opted into paid family leave (meaning they purchased the appropriate paid family leave state insurance), the average weekly wage is calculated by dividing the last 52 weeks of income by 52.
Finally, employers must also attest that the employee in question has used up any quarantine paid sick time and is not able to work remotely.
The Future: Statutory Sick Leave Coming in Six Months
While employers have more pressing items on their minds at the moment, they should be aware that in addition to providing paid sick leave for eligible employees affected by COVID-19, the NYPLL amends New York’s labor law to provide sick leave for all employees. The following benefits become effective on September 14, 2020 (numbers based on the previous tax year):
|No. of Employees||Annual Revenue||Benefit|
|4 or less||Less or equal to $1M||Min. 40 hrs unpaid/yr|
|4 or less||Greater than $1M||Min. 40 hrs paid/yr|
|5-99||More than $1M||Min. 40 hrs paid/yr|
|100 or more||N/A||Min. 56 hrs paid/yr|
Employees shall accrue sick leave at a rate of not less than one hour per every 30 hours worked.
As of January 1, 2021, an employee may take sick leave for (among other things):
- Mental or physical illness, injury or health condition of such employee or such employee’s family member, regardless if a diagnosis has been made or medical care is required
- The diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventative care for, such employee or such employee’s family member
- Absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, for such employee or a family member to seek services or assistance
For purposes of the NYPLL, a “family member" shall mean an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee's spouse or domestic partner. “Parent" is defined as a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. "Child" means a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.
By virtue of Governor Phil Murphy’s signature on Executive Order 107, all non-essential physical businesses—those not providing necessary supplies, such as food, medicine and other daily requirements, or restaurants and other establishments offering delivery and take-out services—have been closed to the public. Consequently, to the extent employees of these shuttered businesses cannot telecommute or otherwise work-from home, lay offs and furloughs are inevitable. For this reason, the New Jersey State Legislature passed the Temporary Lost Wage Unemployment Program.
Temporary Lost Wage Unemployment Program
The Temporary Lost Wage Unemployment Program, A3846/S2293 (TLWUP) is considered a compromise measure, as the legislature was unable to reach a comprehensive decision on amending the existing Earned Sick Leave Law (Earned Sick Leave), Temporary Disability Benefits Law (Temporary Disability Benefits) or Family Leave Act (Family Leave), though further developments may occur as the pandemic progresses.
Under the TLWUP, New Jersey will reimburse employers who continue to pay employees for absences due to COVID-19. Additionally, New Jersey will directly reimburse employees who miss work as a result of COVID-19 or COVID-19-related events, so long as those employees are not currently receiving unemployment benefits.
Additionally, the New Jersey Department of Labor and Workforce Development (NJDOL) has published new guidelines to help employees and employers determine which state laws and protections apply to COVID-19 issues.
TLWUP Employer Reimbursement—Employees Paid & Quarantined
The TLWUP establishes a $10M fund for reimbursing employers who continue paying wages to absent employees who have been quarantined by a medical professional. However, reimbursements are not available for absences that did not result from an actual quarantine order, as those benefits are available to employees directly through the TLWUP. Employers may submit claims for such wages paid, along with supporting documentation. In terms of timing, all claims must be submitted within three months after the termination of the current State of Emergency by the Governor or President, whichever is later.
TLWUP Benefits for Employees Who Cannot Work
In what has become a new hybrid type of unemployment claim, the TLWUP establishes a separate $10M fund to further protect employees whose employers are unable to continue paying wages, and/or employees who have not been quarantined but cannot work as a result of COVID-19. Employees are eligible to receive compensation based upon their average weekly rate from the past calendar year if they are unable to work because:
- The employee became ill and the employer did not continue to pay their wages
- The employee had to care for a family member
- A school or childcare facility closed, preventing the employee from working
Submitting a Claim
An employee can submit a benefits claim for actual lost wages directly by sending an application to the NJDOL. The application must include documentation proving actual lost wages, and the applicant must certify that he or she does not have fully paid leave available. All claims must be submitted within three months after the termination of the current State of Emergency by the Governor or President, whichever is later.
TLWUP Employee Protections
The TLWUP also expands eligibility under Earned Sick Leave, the Family Temporary Disability Leave Law, Temporary Disability Benefits and Family Leave to cover COVID-19. Specifically, employers cannot terminate or refuse to reinstate employees who request or use time off from work due to COVID-19, and employers cannot fire employees who are absent due to a doctor’s orders, regardless of whether an employee actually contracted COVID-19, or was quarantined due to contact with COVID-19.
NJDOL Scenarios and Options
The NJDOL has released additional guidelines and information for employees and employers as to how to weather the COVID-19 epidemic and resulting disruptions. The guidelines also address whether (1) Earned Sick Leave; (2) unemployment insurance; (3) Temporary Disability Benefits/Family Leave; and/or (4) workers’ compensation applies to a given scenario. For instance:
- If an employee (a) contracts COVID-19; (b) is exposed to COVID-19 and is required to self-quarantine; and/or (c) is caring for a sick family member, that employee is eligible to use Earned Sick Leave and/or Temporary Disability Benefits/Family Leave, as applicable
- Employees may use Earned Sick Leave if they are unable to work (a) due to the closing of a school or childcare facility, and/or (b) are voluntarily under self-quarantine due to concerns about contracting COVID-19
- If an employee is unemployed because (a) his or her employer voluntarily closed or (b) the employer was ordered closed; or (c) is underemployed due to lack of demand by employer, that employee is eligible for unemployment insurance.
- If an employee is a health care professional and is self-quarantined due to on-the-job exposure to COVID-19, that employee is eligible for worker’s compensation benefits. Additionally, depending on the circumstances, worker’s compensation benefits may be available to other employees who contract or have been exposed to COVID-19 at work
In Connecticut, certain employee absences caused by COVID-19 will be covered by the state’s Paid Sick Leave Law (PSL), but the PSL will only benefit employees of companies with workforces of 50 or more employees.
Eligibility for Paid Sick Leave Benefits
Any part-time or full-time workers paid on an hourly basis or classified as non-exempt are eligible to take paid sick leave under the PSL after they have completed 680 hours of employment and worked at least an average of 10 or more hours per week in the most recent complete calendar quarter. Of note, temporary or per diem workers are not eligible for the benefits.
Specifically, the PSL provides up to 40 hours of leave for certain workers per year for the following reasons:
- Illness, injury or a health condition of the service worker, the service worker’s child or the service worker’s spouse
- The medical diagnosis, care or treatment of a mental or physical illness, injury or health condition of a service worker, the service worker’s child or the service worker’s spouse
- Preventative medical care for a service worker, the service worker’s child or service worker’s spouse
However, since the PSL only provides 40 hours of paid leave, employees impacted by COVID-19 would need to obtain any available additional paid leave under federal law.
Unemployment Benefits in Connecticut
The Connecticut Department of Labor (CDOL) is encouraging any worker who is (1) laid-off or told not to report to work due to COVID-19, (2) in need of unemployment insurance benefits, and (3) not sick and physically able to work to submit an application. In contrast to what is happening in New York, this suggestion is even being made to unemployed workers who are independent contractors or self-employed. While unemployment benefits are usually not available to these classifications of workers, the CDOL has stated that it is working to ensure that those who need benefits can access them. In addition, the CDOL has waived its standard job search requirements for eligibility to receive unemployment insurance.
In any of the following cases, an employee may file for unemployment benefits in Connecticut, and a determination will be made on a case-by-case basis concerning eligibility:
- The employee needs to take time off from work due to contracting COVID-19 and has no paid time off through his/her employer
- The employee was terminated due to contracting COVID-19
- The employer is requiring the worker to self-quarantine for 14 days even though the employee is not sick and is not getting paid
- The employee’s employer has reduced hours due to participation in the Shared Work program (discussed below)
- The employer is requiring all employees to stay home for 14 days, does not offer telecommuting, and the employee is not getting paid
To be eligible for unemployment benefits, an unemployed worker must be physically able and available for full-time work, unless the employee has a note from a physician stating that he or she can only work part-time.
Shared Work Program
As an alternative to layoffs, the CDOL offers a voluntary Shared Work program that helps employers during business downturns, like those caused by the coronavirus outbreak. The Shared Work program preserves employees’ jobs and the employer’s skilled workforce during disruptions to regular business activity by reducing hours of work for entire groups of affected employees—this as an alternative to laying off some employees while others continue to work full-time. This is accomplished by providing a portion of weekly unemployment compensation payments to associated employees whose workweeks have been reduced. The net effect of the Shared Work program is to cushion the adverse effect of the reduction in business activity on workers and ensures that these workers will be available to resume prior employment levels when business demand increases. Specific information is available here.
Employees Applying for Unemployment Benefits
Employers that require an employee to stay home in the event he or she has contracted COVID-19 must provide the employee with an Unemployment Separation Package, available on the CDOL website. Unemployed workers can also be directed to www.filectui.com, where they can file for unemployment benefits.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.