Coronavirus UPDATES Du Jour: Senate Passes and President Signs FMLA Expansion and Paid Sick Leave; State Paid Leave Laws – When & How Do They Apply?

by Marti Cardi, Esq – Vice President Product Compliance

March 19, 2020

 

The Families First Coronavirus Response Act

In the past two days we have reported on the progress of House of Representatives Bill 6201 proposing expansions of the Family and Medical Leave Act and new paid sick leave requirements here and the House amendments here (or if you widely bookmarked Matrix-Radar, just scroll down!).  On March 18 that bill passed the U.S. Senate and was signed into law by President Trump.  The final version was unchanged from H.R. 6201, so our summary in those two blog posts is still accurate – read them both, and we will follow up soon with more details. In the meantime, remember it goes into effect April 2, 2020; and still impacts only employers with fewer than 500 employees.

Moving on:

State Paid Family and Medical/Disability Laws

Now let’s take a look at how existing or recently-modified state leave laws (paid and unpaid) relate to COVID-19 situations.  NOTE!  This is a very fluid and fast changing situation.  This information is accurate as of press time. We will update this post as needed for new developments.

This overview relates primarily to state paid family and medical or disability benefits and leave laws.  Many states also have paid sick and safe leave laws, and a good number of those cover employee absences due to the closure of schools and day care facilities. In addition, some situations where an employee is ordered by the employer to stay home, or experiences reduced hours or a business closure, may be covered by state unemployment insurance. These are mentioned below only if the state COVID-19 information website specifically addresses the issue. 

A Better Balance is a great resource for state and municipal/county paid sick leave laws.  Check out their website for a comprehensive chart.

California.  The Golden State has taken several steps to provide or clarify state benefits coverage to situations relating to COVID-19:

  • Disability and employee quarantine: An employee may qualify for disability insurance due to their own
    illness and/or quarantine. “Disability” is defined by California statute to include inability to work due to
    a nonwork illness or injury and also “because of a written order from a state or local health officer to an
    individual infected with, or suspected of being infected with, a communicable disease.”
    CA Unemp Ins Code § 2626 (2017).

The Employment Development Department is waiving the one-week elimination period for DI claims for individuals who are unemployed and disabled as a result of COVID-19.  See Governor’s Executive Order. So far this does not appear to apply to voluntary plans. EDD still requires a medical certification signed by a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to the employee.

  • Paid Family Leave: Employees missing work to care for an ill or quarantined family member with COVID-19
    may qualify for paid family leave (presently up to 6 weeks, increasing to 8 weeks on July 1, 2020).
    “Family member” is defined as a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling,
    spouse, or registered domestic partner. EDD still requires a medical certification for the family member
    from a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis
    has been obtained, a statement with the same information listed above for disabilities. This requirement
    can also be met by a written order from a state or local health officer that is specific to the family member’s
    situation.
  • School Closures: If an employee has to miss work because their child’s school is closed, they may be eligible
    for Unemployment Insurance benefits. Eligibility considerations include if the employee has no other
    care options and if they are unable to continue working normal hours remotely.
  • Work closures or reduced hours: Again, unemployment benefits may be available to employees if the
    employer closes its business or reduces work hours. In these cases the employee is not required to actively
    look for other employment but must be ready and available to work throughout the period of
    unemployment or reduced schedule.

California EDD COVID-19 website:  https://edd.ca.gov/about_edd/coronavirus-2019.htm

New Jersey:

  • Disability and employee quarantine: The state’s Temporary Disability Insurance will cover an individual who
    has tested positive for COVID-19 or has symptoms and is unable to work.  The employee must first exhaust
    their leave available under New Jersey’s Earned Sick Leave law, which provides up to 40 hours of paid sick time.
    The employee must still provide the usual medical support from a health care provider, including diagnosis
    and duration the employee is expected to be off work. New Jersey TDI does not cover employee quarantine
    situations.
  • Paid Family Leave: New Jersey Family Leave Insurance (FLI) will apply to employee time off needed to care
    for a family member with a serious health condition. There are no provisions relating to caring for a family
    member due to a COVID-19-related quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under New Jersey FLI.
    New Jersey’s Earned Sick Leave law provides paid sick time (up to 40 hours) that employees can use when their
    children’s school or child care facility is closed due to an epidemic or public health emergency.
  • Work closures or reduced hours: Unemployment benefits may be available to employees if the employer
    closes its business or reduces work hours.

New Jersey COVID-19 website:  https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml

New York

NOTE:  On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19. Here are the specifics: 

  • Employers are required to provide sick leave for absences due to a COVID-19-related quarantine ordered
    by the state or an authorized state or local department or board of health, according to the employer’s
    size and net income:

    • Employers with 10 or fewer employees: unpaid leave for the duration of the quarantine.
    • Employers with 10 or fewer employees and net income greater than $1 million: 5 days of paid leave,
      plus unpaid leave for the duration of the quarantine.
    • Employers with 11-99 employees: 5 days of paid leave, plus unpaid leave for the duration of the
      quarantine.
    • Employers with 100 or more employees: 14 days of paid leave (no reference to unpaid leave for
      the duration of a quarantine).
  • The employee can apply for New York disability and paid family leave (PFL) benefits after using the mandated
    paid leave. The waiting period is waived for employees of employers with 10 or fewer employees and $1 million
    or less in net income.
  • This paid sick leave must be provided without loss of an employee’s other accrued sick leave.
  • The definition of “disability” for purposes of disability benefits is expanded to include the inability of the
    employee to perform the duties of his/her position or other offered position due to an order of quarantine
    relating to COVID-19, after exhaustion of the paid sick leave (PSL) offered by the employer (presumably
    including company-offered PSL and the newly mandated PSL).
  • Paid family leave is expanded to include leave taken by an employee subject to an order of quarantine relating
    to COVID-19 applicable to the employee or to the employee’s minor dependent child.
  • Benefits available under the disability law and paid family leave run concurrently, with the PFL benefits
    being primary.
  • The amount of benefits available for COVID-19-related disability is a maximum of $2,043.92 per week, and
    for COVID-19-related PFL is a maximum of $840.70 per week. After application of PFL benefits, the amount
    of disability benefits is capped so that the employee does not receive in total more than the employee’s
    average weekly wage.
  • If the federal government provides sick leave and/or employee benefits for employees related to COVID-19,
    then the federal benefits apply first and the state benefits described above serve as a top-off up to the
    limits provide by the New York bill.
  • The employee must be restored to his/her position held prior to the quarantine (so, same position, not
    an equivalent position
    ).

Rhode Island:

  • Disability and employee quarantine: Employee COVID-19-related illnesses may be covered by Rhode Island
    Temporary Disability Insurance (TDI).  The Rhode Island Department of Labor and Training (DLT) will waive
    the 7-day minimum claim duration so employees can get coverage from their first day of COVID-19 illness.

By its terms TDI does not to apply to an employee under quarantine but not actually diagnosed with COVID-19 or exhibiting symptoms. However, the Rhode Island COVID-19 Workplace Fact Sheet provides this statement:  “For individuals under quarantine, DLT will waive the required medical certification, and instead will allow them to temporary qualify via self-attestation that they were under quarantine due to COVID-19.”  This appears intended only to waive the medical certification requirement if someone is quarantined, not to create new TDI coverage.

  • Paid Family Leave: Rhode Island Temporary Caregivers Insurance (TCI) provides 4 weeks of time off to care
    for a seriously ill family member (child, parent, spouse, domestic partner, parent-in-law, or grandparent).
    There is no TCI coverage because a family member is in quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under Rhode Island TCI.
  • Work closures or reduced hours: If a workplace closes or an employee is directed by the employer to remain
    home, the employee may be eligible for unemployment insurance.

Rhode Island COVID-19 Workplace Fact Sheet:  www.dlt.ri.gov/pdfs/COVID-19 Workplace Fact Sheet.pdf

Washington:

  • Disability and employee quarantine: Washington’s new Paid Family and Medical Leave law covers an employee’s
    absence from work due to a serious health condition.  Employees must still provide medical certification of the
    employee’s condition, but this can be obtained via email and the Employment Security Department will accept
    an electronic signature.  An employee’s time off from work due for purposes of quarantine is not covered by
    Washington PFML, but the employee may be eligible for unemployment insurance.
  • Paid Family Leave: Paid family leave is available to care for a family member with COVID-19 if a medical provider
    certifies that it qualifies as a serious health condition.
  • School closures: Employee absences due to school or day care closures are not covered under Washington PFML.
    Unemployment insurance may be available.
  • Work closures or reduced hours: If an employee is laid off work temporarily or if receives reduced hours due to
    a business slowdown or a lack of demand as a result of COVID-19, the employee may be able to receive
    unemployment benefits. If placed on “standby” status the employee does not have to look for another job while
    collecting unemployment benefits as long as certain conditions are met (including performing available telework).

Washington COVID-19 websites abound:

https://esd.wa.gov/newsroom/covid-19

https://paidleave.wa.gov/coronavirus/

easy-to-read comparison guide

https://esd.wa.gov/newsroom/covid-19#forms

 

Are we having fun yet?

Look, let’s get real for a moment. None of us have ever lived through something precisely like this moment in time. Scary? Sure. Complicated? You bet. Changing every sec- oh wait, there it goes again. Changing every second? Yup. Here’s the good news, because we all need some. We will get through this, together. From the Matrix-Radar team, you can be assured we will not take our eyes off the ball and continue to try and help make sense of every new rule and nuance (new-ance?). If you are a Matrix or Reliance Standard client with questions about your leave of absence and disability programs, your account manager will absolutely help – he or she is getting up to speed as we all are. Like you, we are social distancing, work-from-home-ing, loving our families and taking care of business like a boss. Stick with us and stay positive, we will come out stronger, together. 

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