UPDATED JUNE 15, 2020
As employees’ needs during the COVID-19 pandemic change, some state and local authorities have begun to modify and implement new state-related benefits. While not an exhaustive list of all laws that have been enacted, this article summarizes some key changes that employers should be aware of that may be available to employees impacted by COVID-19.
Federal Leave & Unemployment Assistance Response to COVID-19
The Families First Coronavirus Response Act (FFCRA) applies to employers with less than 500 employees working in the United States. It went into effect on April 1, 2020, and sunsets on December 31, 2020. There are two main benefits offered by the new federal law that aid employees impacted by COVID-19:
Emergency Paid Sick Leave
The FFCRA creates the Emergency Paid Sick Leave Act, which provides two weeks (or 80 hours) of leave (“EPSL”) for employees who are unable to work (or telework) for any one of the following COVID-19 related reasons:
- Employee is subject to a Federal, State, or local quarantine or isolation order;
Important Note: The Department of Labor (DOL) has issued regulations and defined the term “quarantine or isolation order” to broadly to include “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the employee to be unable to work even though his or her employer has work that the employee could perform but for the order.”
- Employee has been advised by a health care provider to self-quarantine;
- The employee is experiencing symptoms of the virus and seeking medical diagnosis;
- The employee is caring for an individual who is subject to, or advised by a healthcare provider to self-quarantine;
- The employee is caring for a child because their school, place of care, or childcare provider is closed or unavailable due to COVID-19;
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary or the Treasure and Secretary of Labor.
The law limits this paid leave to $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) noted above (generally, due to an employee’s own illness or quarantine); and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) (caring for others).
EPSL is available on the employee’s first day of employment. Employers may not ask the employee to take other forms of paid time off prior to utilizing EPSL. This is because EPSL is in addition to, and not a substitute for, an employee’s other leave entitlements. However, an employee and employer may agree that the employee will use preexisting leave entitlements to supplement Emergency Paid Sick Leave up to the employee’s normal earnings, given that Emergency Paid Sick Leave is capped, depending on the reason for the leave. For more information about Emergency Paid Sick Leave under the FFCRA, please visit our blog post.
Emergency Family and Medical Leave
The FFCRA also creates the Emergency Family Medical Leave Expansion Act (“EFMLA”), which amends the federal Family and Medical Leave Act (FMLA) and provides up to 12 weeks of job-protected leave to an employee if the employee is unable to work (or telework) due to a need to care for a minor child if the child’s school or place of care has been closed or is unavailable due to a public health emergency.
The first 10 days of the employee’s 12 weeks of leave are unpaid and the remainder, if applicable, must be paid at 2/3 of the employee’s pay with a cap of $200 per day and $10,000 in the aggregate. Employees are eligible for the leave if they have been employed for at least 30 calendar days prior to the date leave is to begin. While an employer cannot require an employee to use another source of paid leave before taking EFMLA, an employee may elect to use leave under the employer’s policies that would be available to the employee to care for a child, such as vacation or personal leave, concurrently with EFMLA, in order to supplement their leave amounts up to the employee’s normal earnings.
EPSL and EFMLA under the FFCRA do not preempt any state or local paid leave mandates and employers should be cognizant of any state and local guidance on coordinating the new FFCRA rights with state and local laws. For more information, please visit our blog post.
Supplemental Unemployment Benefits Assistance Under the Coronavirus Aid, Relief and Economic Security (CARES) Act
The CARES Act expands unemployment benefits to certain “covered individuals” through the creation of supplemental benefits and unemployment insurance relief, which is in effect through December 31, 2020.
What follows is a summary of the key provisions that will only apply in states that adopt the unemployment expansion provisions under the CARES Act:
- Pandemic Unemployment Assistance (PUA): Extended eligibility for individuals who have traditionally been ineligible for unemployment insurance benefits (e.g., independent contractors, self-employed workers, and individuals who lack sufficient work history) from Jan. 27, 2020 through Dec. 30, 2020;
- Pandemic Unemployment Compensation (PUC): Additional $600 per week, on top of existing state unemployment benefits benefits to recipients until July 31, 2020; and
- Pandemic Emergency Unemployment Compensation (PEUC): Additional 13 weeks of unemployment benefits beyond the standard 26 weeks already provided by the state, for a total of 39 weeks of combined federal and state unemployment benefits.
Who is Eligible for Supplemental Unemployment Benefits Under the CARES Act?
Individuals who are unemployed, partially unemployed, or unable to work for the following reasons:
- The individual is diagnosed with COVID-19 or experiencing symptoms and seeking a diagnosis, a member of an individual’s household is diagnosed with COVID-19, or the individual is caring for a family member or member of their household diagnosed with COVID-19;
- The individual is a primary caregiver to a child or other member of their household who is unable to attend school/another facility and such school or facility of care is required for the individual to work;
- The individual is unable to reach a place of employment because of a quarantine order or the individual has been advised to self-quarantine by a medical provider;
- The individual has become the breadwinner or major support for a household because the head of household has died from COVID-19;
- The individual has quit their job as a direct result of COVID-19, or their place of employment closed due to COVID-19; or
- The individual is self-employed or would otherwise not qualify for state unemployment and meets one of the above eligibility criteria.
Who is Ineligible for Supplemental Benefits Under the CARES Act?
Individuals are not eligible for unemployment benefits if they can telework or are receiving paid sick leave or other paid leave benefits, including EPSL or EFMLA under the FFCRA. The DOL has clarified that if an employer provides leave under the FFCRA, an employee is not eligible for unemployment insurance. However, each state has its own unique set of rules and the DOL recently clarified additional flexibility to the states in a recent Unemployment Insurance Program Letter to extend partial unemployment benefits to workers whose hours or pay have been reduced.
What are the Benefit Amounts and Duration?
The unemployment benefits will be the total of state provided unemployment benefits (for up to 39 weeks) and federal pandemic unemployment compensation (for up to 4 months until July 31, 2020) as described below:
- State provided unemployment benefits, which vary by state, for up to 39 weeks. States generally provide for 26 weeks of benefits, so the bill extended this time period by 13 weeks. States generally provide a percentage of an individual’s income (during a specified period of time), up to a maximum amount. For example, in California, benefits can be between $40 and $450 per week. For individuals who would not otherwise qualify for state unemployment benefits, the weekly benefit will be calculated in accordance with the Disaster Unemployment Assistance (DUA) program.
- Federal pandemic unemployment compensation under the CARES Act, which is $600 per week, for unemployment benefits between now until July 31, 2020, in addition to any amount provided by the state.
Individuals should contact their individual state unemployment insurance agencies for additional information on unemployment benefits, general eligibility, and emergency rules relating to the coronavirus crisis. For more information about the CARES Act, please visit our blog post.
State-Level Sick, Disability, and Family Leave Program Response to COVID-19
Many states have provided updated guidance on their state mandated disability insurance (SDI), paid family leave (PFL) and sick leave programs in response to COVID-19, making it easier for eligible employees to access these benefits. These programs may permit employees to take leave due to their own health condition or to take care of an immediate family member. These leaves also may not necessarily require the employee or family member to have contracted COVID-19 to apply. Further, certain states have expanded their definition of a “qualifying disability” to include quarantine. What follows is a non-exhaustive list of updates focusing on California and New York laws:
In California, employees that are unable to work due to COVID-19 related reasons may qualify for benefits under their sick leave, paid family leave (PFL), and short-term disability insurance (SDI) programs.
Paid Sick Leave
All employers that have an employee who works at least 30 days within a year in California, including part-time, per diem, and temporary employees, are required to provide paid sick leave to their employees that qualify under the Healthy Workplace Healthy Family Act of 2014 (Paid Sick Leave Law).
If an employee has paid sick leave available under the Paid Sick Leave Law, the employer must provide such leave and compensate the employee under that law. Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition, or for preventative care for the employee or the employee’s family member. Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. For more information on California’s Paid Sick Leave Law, see the Department of Industrial Relations (DIR) FAQ.
In addition, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For additional information, see the California DIR’s FAQs.
Paid Family Leave
California Paid Family Leave (PFL) provides partial wage replacement benefits to employees who need to take time off from work to care for a seriously ill family member (child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner) or to bond with a new child entering the family through birth, adoption, or foster care placement.
Employees that are unable to work because they are caring for an ill or quarantined family member may file a PFL claim with the state of California, and may be eligible for up to six weeks of benefit payments, up to $1,300 per week (depending on income). The California Employment Development Department (EDD) has confirmed that benefits will be available for COVID-19 related illness.
Disability Insurance Benefits
The California State Disability Insurance program provides SDI benefits to eligible workers who are unable to work due to non-work-related illness or injury, pregnancy, or childbirth.
The California Employment Development Department (EDD) has confirmed that employees who are unable to work because they have been exposed to or diagnosed with COVID-19 can file a disability insurance claim, and may be eligible to receive short-term benefit payments of approximately 60-70 percent of wages up to $1,300 per week (depending on income). The EDD has waived the seven-day waiting period normally required for SDI benefits due to the pandemic. For further information, please see EDD guidance.
Unemployment Insurance Benefits
The California Unemployment Insurance program pays benefits to workers who have lost their job and who meet the program’s eligibility requirements. Employees that experience a reduction of hours resulting in a loss of employment or whose employer shuts down operations due to COVID-19 can file an Unemployment Insurance Claim and may be eligible for partial wage replacement benefits. In addition, and as previously discussed, the federal Pandemic Unemployment Assistance Program and provisions under the CARES Act, will provide federally funded unemployment compensation on top of the state provided unemployment benefits (for up to 39 weeks) and provides an additional $600 per week through July 31, 2020. The EDD will begin accepting online applications for this program on Tuesday, April 28, 2020.
On April 15,2020, California Governor Newsom announced by executive order a new initiative to expand call center hours at the EDD to better assist Californians with unemployment insurance applications. The new call center is expected to launch on April 20, 2020 and will operate seven days a week from 8:00 am to 8:00 pm. The governor also ordered the EDD to develop and streamline the application process for the Program to ensure eligible individuals receive the assistance they need.
New York State
Sick Leave (Quarantine)
In response to the outbreak of COVID-19 in New York State, Governor Andrew Cuomo enacted Senate Bill 9081 (the Act) providing immediate job-protected sick leave and assistance to New Yorkers impacted by COVID-19. The Act also provides certain qualifying employees with salary continuation during otherwise unpaid leave periods by expanding coverage under the Paid Family Leave and Disability Benefits Law, discussed further below.
Effective March 18, 2020, all employers with at least one employee working in New York State are now required to provide at least five days of job protected paid sick leave to employees who need to take leave because they or their minor dependent child are under a mandatory or precautionary order of quarantine or isolation due to COVID-19. The amount of paid sick leave an employer is required to provide depends on the number of employees they have and the employer’s net annual income. See here for more information on job-protected paid time off for quarantine. See here for more information on sick leave due to a minor dependent child that is quarantined.
Once the employee has exhausted the paid leave entitlement provided from their employer, they may, (depending on employer size), be able to apply for additional COVID leave benefits through their employer’s New York Paid Family Leave (PFL) and disability benefits insurance carrier.
For additional information on the Act, please see our blog post.
Paid Family Leave (Quarantine)
Governor Cuomo’s March 18, 2020 Act expands the definition of “family leave” for purposes of New York’s Paid Family Leave program (NY PFL) to specifically cover an employee taking leave from work due to an order of quarantine or isolation, or in the event the employee must care for their dependent child subject to an order of quarantine or isolation.
Therefore, all employees who are normally eligible for PFL (regardless of employer size) may also apply for PFL benefits if they require leave to provide care for a minor dependent child of the employee who is subject to a qualifying quarantine or isolation order. The Act does not indicate whether this expansion is temporary.
Such PFL benefits would be available at the same rate as PFL taken for other covered reasons (in 2020, the PFL benefit is 60% of an employee’s average weekly wage, up to a maximum weekly benefit of $840.70). In order to apply for PFL/disability benefits, employees must submit to the insurance carrier a COVID-19 specific application (Request for COVID-19 Quarantine DB/PFL-Self or Request for COVID-19 Quarantine PFL-Child) and include the order of quarantine or isolation no later than 30 days from the employee’s first day of leave to avoid losing benefits. The employer’s insurance carrier must pay or deny these benefits within 18 calendar days of receiving the employee’s completed request for benefits.
Notably, the law also allows an employee to receive benefits under NY PFL and short-term disability “concurrently” (something which has not previously been permitted). Thus, employees will be able to earn a weekly maximum of $840.70 in NY PFL benefits and $2,043.95 in disability benefits. The seven-day waiting period to collect disability benefits for COVID-19 related disability has also been eliminated.
Disability Benefits (Quarantine)
Governor Cuomo’s Act also expands the definition of disability for purposes of New York’s disability benefits law. The term “disability”—as used in the New York Worker’s Compensation law is now defined 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 issued by the state.” The Act allows employees of employers with fewer than 100 employees (i.e. those who receive less than 14 days of paid leave to cover the period of quarantine or isolation) disability benefits for the remainder of the period of quarantine or isolation.
It is important to note that an employee must exhaust all paid sick leave provided by the employer under the Act prior to having access to disability benefits for being subject to quarantine or isolation order.
Note: The Act does not currently indicate whether this expansion will be temporary or for a longer term.
Unemployment Insurance Benefits
Employees that experience a certain reduction of hours or whose employer shuts down operations due to COVID-19 can file an Unemployment Insurance Claim and may be eligible for partial wage replacement benefits. In New York, individuals may receive partial benefits if they worked fewer than four days and earned the maximum benefit rate ($504) or less in a given week.
Those who qualify can receive a weekly benefit payment for a maximum of 26 full weeks during a one-year period. Employees should also keep in mind that New York State has adopted the federal Pandemic Unemployment Assistance Program that may provide extended federally funded unemployment compensation under the CARES Act to eligible employees. For additional information, see the Fact Sheet released by the New York Department of Labor.
Please find below helpful links to select additional state COVID-19-related information. Please note this is not an exhaustive list of all states or laws that have been enacted.
Colorado – The Department of Labor and Employment released an FAQ on Colorado’s Health Emergency Leave with Pay rules requiring some employers to provide paid sick leave to employees for COVID-19 reasons and released an Extended Benefits Worksheet concerning unemployment benefits.
Massachusetts – The attorney general of Massachusetts released an FAQ covering employer obligations and employee rights under its existing sick leave program. The Department of Unemployment Assistance has announced that the Pandemic Unemployment Assistance guaranteed under the CARES Act would become available.
Oregon – The Bureau of Labor and Industries Wage and Hour Division published FAQs for employers and employees about sick time and COVID-19 and the Employment Department released an FAQ on unemployment benefits.
Texas – The Texas Workforce Commission will be waiving work search requirements for all claimants and the waiting week period for unemployment benefit claimants affected by COVID-19.
Washington D.C. – The District of Columbia amended the D.C. Family and Medical Leave Act to create a new category of protected leave, called “Declaration of Emergency Leave” and modified D.C. unemployment requirements in light of COVID-19. D.C. also temporarily expanded their paid sick leave law to provide paid public health emergency leave, effective April 10, 2020.
The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog.