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March, 2020
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      DISCLAIMER: Information and guidance from federal and state authorities are changing hour to hour and day to day based on developments regarding the coronavirus. However, we are doing our best to stay on top of issues and will keep our clients and colleagues informed.

     Please be informed that we are tracking the federal government's negotiations over the bill passed by the House, which is currently being addressed by the Senate, entitled "Families First Coronavirus Response Act."

New Jersey Department of Labor Issues Guidelines for Leave and Benefits  in the 
Wake of the Coronavirus Pandemic
     New Jersey's Department of Labor (NJDOL) has issued guidelines for how and when the employees in the state may be eligible for paid sick leave, temporary disability insurance, workers' compensation and unemployment insurance benefits.

     An individual may be eligible to use Earned Sick Leave if he or she cannot work because:
  • The individual tested positive for the coronavirus or has symptoms of the coronavirus;
  • The individual is told to self-quarantine because of exposure to the virus;
  • The individual is told to self-quarantine because of risks due to a pre-existing health condition;
  • The individual's child's school or childcare center is closed by a public official due to public health concerns;
  • The individual's employer was ordered to close its business by a public official for public health concerns; or
  • The individual must care for family member(s) with coronavirus or its symptoms
     An individual may be eligible for Temporary Disability Insurance if:
  • The individual, who tested positive for the coronavirus, has symptoms of the coronavirus or is told to self-quarantine because of risks due to a pre-existing health condition, has exhausted his or her Earned Sick Leave and still cannot go back to work.
     An individual may be eligible for Workers' Compensation if:
  • The individual, who contracted the virus for a work-related reason or was told to self-quarantine due to exposure to the virus during the course of his or her work, has exhausted his or her Earned Sick Leave and still cannot go back to work
     An individual may be eligible for full or partial Unemployment Insurance benefits if the individual has not contracted the virus but cannot work full time because:
  • The individual's employer voluntarily closed its operations due to the coronavirus;
  • The individual's employer was ordered to close its business by a public official for public health concerns; or
  • The individual's employer reduced his or her work hours due to the coronavirus.
     An individual may be eligible for Family Leave Insurance benefits if:
  • The individual, who is caring for family member(s) with coronavirus or its symptoms, has exhausted his or her Earned Sick Leave benefits.
     Note that in addition to these state benefits, some employees may be eligible for up to 12 weeks of unpaid leave annually under the federal Family and Medical Leave Act and may be eligible for unpaid leave as a reasonable accommodation under the Americans with Disabilities Act.

NYS Governor Proposes Sick Leave Benefits 
Amidst the Coronavirus Outbreak
     As the number of coronavirus cases continues to climb throughout NYS, Governor Cuomo has proposed state-wide sick leave benefits for employees plus additional protections for quarantine periods.

     In January, as part of his State of the State address, the Governor proposed to require employers with 100 or more employees to provide at least seven days of paid job-protected sick leave per year, to require employers with five to 99 employees to provide at least five days of paid job-protected sick leave per year, and to require employers with four or fewer employees to provide five days of unpaid sick leave per year. This past month, the Governor added that sick leave legislation should compel employers to compensate their employees throughout any period of mandatory quarantine. Large corporations such Microsoft, Amazon, Walmart, Uber and Lyft have already begun to implement flexible sick leave policies in the wake of the coronavirus pandemic, without waiting for federal or state action.

     The Governor announced this month that NYS would guarantee two weeks of paid job-protected leave for employees of the State government who are in in mandatory or precautionary quarantine due to being infected by, having been in contact with or exposed to the coronavirus.

     NYC and Westchester County employers should already have a paid sick leave policy in place per the city's Paid Safe and Sick Leave Law and the County's Earned Sick Leave Law. We are tracking the State's sick leave proposal and will provide updates when there are new developments.

U.S. Department of Labor Publishes Guidance on Flexible Unemployment Insurance
Programs in States Amidst Coronavirus Outbreak
     The U.S. Department of Labor published a guidance that provides states more flexibility to administer benefits through their unemployment insurance (UI) programs to help individuals who are unemployed due to the coronavirus pandemic. "Unemployed" individuals do not include those who are currently receiving paid sick leave or paid family leave.

     This guidance allows states to amend their UI laws to pay benefits to individuals now unemployed due to the coronavirus outbreak in the following scenarios:
  1. When an employer temporarily ceases operations due to the coronavirus, thereby preventing employees from going to work;
  2. When an employee is quarantined but expects to return to work after the quarantine period ends; and
  3. When an employee leaves his or her job due a risk of exposure, contact with, or infection to the coronavirus, or to care for a family member.
     The US DOL guidance does not by itself expand eligibility for unemployment benefits, which are governed and administered by each state. Rather, the guidance allows states to expand eligibility under their respective state programs.

New York City Offers Financial 
Assistance to Small Businesses
In the midst of these tough times spurred by the coronavirus pandemic, NYC's Mayor de Blasio announced that the City would be able to offer financial assistance for small businesses negatively impacted in two different ways.

First, small business owners who employ fewer than five employees may be eligible to receive a grant to pay for 40% of payroll costs for up to two months to retain their employees during this crisis. Second, small business owners with fewer than 100 employees may be able to receive zero interest loans of up to $75,000 to help offset their losses if their sales have fell 25% or more.

Small business owners of NYC should fill out an interest form at https://www.surveymonkey.com/r/N336ZYB if they would like to learn more about these assistance programs.

New Jersey WARNs Employers by Imposing Stricter Obligations Related 
to Reductions in Force

Joining the list of new employee-friendly laws is New Jersey's amendment to its Millville Dallas Airmotive Plant Job Loss Notification Act (NJ WARN)-the state's version of the federal WARN statute (Worker Adjustment and Retraining Notification Act). The amendment was signed into law on January 21, 2020 and will go into effect as of July 19, 2020. The NJ WARN mandates covered employers to provide proper notice to their employees prior to making decisions of plant closings and mass layoffs. New Jersey employers may be required to comply with both the federal WARN statute and the NJ WARN. The recent amendment changes the NJ WARN as follows:
  • Broadens the definition of "employer". Previously, an employer was covered by the NJ WARN if it employed 100 or more employees who worked a certain number of hours per week and for a certain duration for the company. Now, the amended law only requires an employer to be "any individual, partnership, association, corporation, or any person or group of persons" with 100 or more employees to be considered a covered employer under the NJ WARN.
  • Extends the notice period to employees to 90 days. Previously, employers were required to provide a WARN notice 60 days in advance of the mass layoff. Now, employers must provide WARN notices to their employees 90 days in advance.
  • Requires mandatory severance for all terminated employees. Prior to the amendment, employers were required to pay severance only if they failed to provide timely WARN notices. The amended law now requires employers to pay severance, equivalent to one week of salary for each year of employment, to all employees affected by mass layoffs or shutdowns.
  • Imposes penalties for failure to provide notice. If employers fail to provide the WARN notice, they will be required to pay additional severance of four weeks of pay to terminated employees (in addition to the mandatory severance payments).
  • Includes part-time employees in the employee count. Previously, for an employer to be covered under the NJ WARN, it had to employ 100 or more full-time employees. With the recent amendment, all employees, regardless of their status as full-time or part-time, will be counted towards this 100-employee count.
  • Requires termination of 50 or more employees for NJ WARN trigger. For businesses with multiple branches, offices, or plants across the state, the NJ WARN requirements will be triggered so long as 50 or more employees are terminated in the aggregate. Prior to this change, the notice requirement was triggered when (1) employees worked a certain number of hours each week and for a specific amount of time with the employer, and (2) when 33% of all employees were terminated.
     Employers should also take note that terminated employees may not waive their severance rights under the new law and settle contested NJ WARN claims without the court's involvement.

     Due to the specific and stricter nature of these amendments and the associated penalties, New Jersey employers should familiarize themselves with the new law and seek advice and counsel from their attorneys leading up to the law's effective date.

Whether you are an employer or employee, for questions or concerns about any of the legal topics in this newsletter, you may contact Chaim Book at [email protected], Sheryl Galler at [email protected], or Jennifer Kim at [email protected].

Moskowitz & Book, LLP  | [email protected]  | http://mb-llp.com/

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