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In response to the coronavirus pandemic (COVID-19), Congress passed and President Trump signed into law, the Families First Coronavirus Response Act (FCCRA), which expires on December 31, 2020.
The law provides paid sick leave as well as paid family leave for employees who are directly or indirectly impacted by the coronavirus and who work at businesses with fewer than 500 employees. Small businesses with fewer than 50 employees may petition the U.S. Department of Labor to receive an exemption if the leave requirements would jeopardize the viability of a business as an ongoing concern.
Further information on FCCRA is available at the U.S. Chamber of Commerce’s Coronavirus Paid Leave Programs Employer Guide.
In addition to the paid leave provided by FCRRA, states have passed additional paid leave requirements. In March 2020, New York and New Jersey enacted laws to provide job-protected paid sick leave for COVID-19 related conditions that expand the number of covered establishments and give employees reinstatement rights.
In New York, employers with at least 100 employees must provide at least 14 days of paid sick leave; employers with between 11 and 99 employees must provide at least five days of paid sick leave and, after that, give employees access to state short term disability benefits and paid family leave benefit; employers with 10 or fewer employees and more than $1 million in revenue in the previous tax year must provide at least five days of paid sick leave and, after that, give employees access to state short term disability benefits and paid family leave benefits; and employers with 10 or fewer employees and less than $1 million in revenue in the previous tax year must give their workers access to state paid family leave and short-term disability benefits but have no obligation to pay for sick leave. Employees remain entitled to unpaid sick leave during the period of the quarantine or isolation order.
Under the New Jersey Earned Sick Leave Law (“NJESL”), employees can accrue up to 40 hours – or 5 full days – of paid sick leave.
The new law amends New Jersey's Earned Sick Leave Law to allow employees to use earned sick leave where 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 or because of a state of emergency declared by the Governor due to an epidemic or other public health emergency; or
- The declaration of a state of emergency by the Governor, or 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; or
- During a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.
Maryland passed a law that prohibits the termination of employees because they have been isolated or quarantined due to COVID-19.
State legislatures in California, Kentucky, Louisiana, Massachusetts, Minnesota, Ohio, and Pennsylvania are also contemplating paid sick leave bills in response to the coronavirus. If any of these bills become law, employers with multiple locations throughout the U.S. will face an additional patchwork of leave requirements. While it is understandable that states want to take action to protect their residents, compliance with overlapping and varying leave bills compounds what was already a challenge before Covid-19. So as states, and even localities, consider new paid leave ordinances, it is important to keep in mind what the federal government has already put in place, try to be consistent with how other states are handling the issue, and narrowly tailor new laws to the current crisis. That will help all states get their economies going again once a decision is made to reopen.