Articles Posted by Kathleen M. Connelly

Lindabury partner Kathleen M. Connelly of the firm’s Employment Law group discussed with ROI-NJ the question her clients have been asking most in regard to office reopenings, which is how to deal with employees who are reluctant to return to work due to a generalized fear of COVID contraction. While employees returning to the workplace continue to have significant leave protection for COVID and non-COVID absences through December of 2020, employees can still be terminated if they refuse to return to work, and there are certain ways employers can communicate and accommodate their staff, which is also outlined in the article.

You can read the entire transcript here.

In response to the COVID-19 public health emergency, Congress passed the Families First Coronavirus Response Act (the “FFCRA”) requiring employers with 500 or less employees to provide paid sick leave and paid family leave to qualified employees affected by the pandemic. These benefits are in addition to any other earned sick leave, vacation or other paid time off benefits offered by the employer. These additional benefits are temporary and are only available to employees through December 31, 2020.

Posting requirement: Now that employers are preparing for employees to return to the workplace, employers covered by the FFCRA must prominently display the U.S. Department of Labor’s poster entitled Employee Rights – Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act, a copy of which can be found here.

Distribution of Employee Rights publication: Both the federal and state governments are encouraging employers to continue to permit employees to work remotely to reduce the headcount in the workplace and potential spread of the virus. Covered employers who plan to continue remote work arrangements should therefore distribute the DOL’s Employee Rights publication to these employees, if not to all employees, to ensure employee awareness of leave rights under the FFCRA.

I. When Can America Go Back To Work?

As employers and employees increasingly chafe at the bit to return to the workplace, businesses must look to state and local stay-at-home directives to determine when they can reopen. It is anticipated that this will occur in phases and will likely depend on the nature of the business and jurisdiction where it is located.

New Jersey: New Jersey’s Stay-At-Home order was initially expected to expire on May 8, 2020. Although Governor Murphy has permitted state and county parks and golf courses to reopen on May 2, 2020, the Governor announced that the stay-at-home directive will remain in place indefinitely until the following six principals in his plan entitled The Road Back are sufficiently met:

Since the onslaught of layoffs and furloughs caused by the COVID-19 crisis, many employers found themselves caught in the crosshairs of the onerous severance and notice obligations imposed by the January 2020 Amendments to New Jersey’s Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”), slated to go into effect on July 19, 2020.

To alleviate the consequences for businesses already struggling with the effects of the pandemic, on April 14, 2020 Governor Murphy signed into law a bill that delays the effective date of the NJ WARN Act amendments until 90 days after the lifting of the COVID-19 state of emergency, currently expected to expire on July 7, 2020.   Unless the Governor extends the state of emergency to a later date, the NJ WARN Act amendments will not go into effect until October 5, 2020.  The new law is effective immediately and is retroactive to March 9, 2020.

As we discussed in a prior publication, the NJ WARN Act was amended to significantly expand employee rights in the event of a plant closure or mass layoff.  Among other things, the amendments

Our employee says they need Paid Leave under the FFCRA. What documentation can the company require from the employee to ensure these payments qualify for employer tax credits?

Under the Families First Coronavirus Protection Act (FFRCA), employers are eligible for tax credits for any payment of qualified Emergency Sick Leave or Emergency Family and Medical Leave benefits mandated by the new law.  Going forward, employers must be sure to require and maintain appropriate documentation from employees requesting leave to substantiate to the IRS that the employer credit is warranted. Additional information about what constitutes a “qualified” use of Emergency Sick Leave or Emergency Family and Medical Leave can be found here.

Eligible employers are entitled to retain a 100% credit for the payment of all qualified sick leave and family leave wages, plus allocable qualified health plan expenses and the employer’s share of Medicare taxes, rather than depositing them with the IRS.  Employers must retain records and documentation related to and supporting each employee’s leave to substantiate the claim for the credits, and retain the Forms 941, Employer’s Quarterly Federal Tax Return, and 7200, Advance of Employer Credits Due To COVID-19, and any other applicable filings made to the IRS requesting the credit.

Last week in our publication entitled Employer’s Guide to Federal and State Employee Leave Rights and Income Protection for Coronavirus Related Absences, we addressed the new Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Leave”) that employers must provide to employees as of April 1, 2020 under the new Families First Coronavirus Response Act (FFCRA).  As indicated in that publication, the US Department of Labor was expected to issue additional guidance of compliance with these new paid leave obligations.

Since the passage of the FFCRA, the U.S. Department of Labor has issued several versions of a Questions and Answers publication that clarifies some of the issues that were not directly addressed in the FFCRA.  Below is a summary of some of those clarifications.

Documentation Employees Must Submit to Support a Paid FFCRA Leave Request.  The FFCRA mandates Emergency Paid Sick Leave if the employee is able to work/telework for one of 6 Covid-19 related absences (refer to the Guidance link above for the list of 6 qualifying reasons) and paid Emergency FMLA Leave if the employee is unable to work due to a child’s school or daycare closure (or unavailability of daycare provide).  The DOL makes it clear that employers must require employees to provide documentation to support an Emergency Paid Sick Leave or Emergency FMLA Leave, including:

Updated as of April 1, 2020

In recent days employers have been faced with very difficult and unanticipated situations in the workplace.  Employee absences from the workplace, whether related to personal or family illness due to the virus, voluntary or involuntary quarantines, fear of contracting the virus, reductions in hours, workplace furloughs or closures, may implicate leave rights under the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA), as well as paid sick leave rights under the New Jersey Paid Sick Leave law.   In addition, employees may be eligible for additional income protection from state unemployment, temporary disability and workers compensation funds.

Signed into law on March 18, 2019 the Families First Coronavirus Response Act has several components, including paid sick leave and paid FMLA leave obligations aimed at easing the financial  impact of the virus upon employees. This guide synthesizes the various federal and state programs and answers questions about the leave and income protections are available to employees who find themselves unable to work due to the coronavirus epidemic.