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Employer Compendium of COVID-19 Obligations and Government Resources for the New York Tri-State Area

    Employer Compendium of COVID-19 Obligations and Government Resources for the New York Tri-State Area

    By: Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

    Employers throughout the region have been impacted by a plethora of new laws and emergency measures passed by federal and state governments, and restrictions imposed through executive orders at the state level, in response to the COVID-19 pandemic.  The following is a resource guide to the types of legal changes and guidance that have been issued, with links to the government websites and documents that offer the most current information.

     

    • CARES Act – Among other things, the Coronavirus Aid, Relief and Economic Security Act offers loans to businesses affected by the coronavirus and expands unemployment insurance benefits available to workers.  Key provisions include:
    • Enhanced unemployment insurance benefits of $600 per person per week, and an extension of the benefit period by up to 13 additional weeks, plus eligibility for individuals impacted by COVID-19 who would not normally be eligible for benefits, including independent contractors.  The U.S. DOL has issued various guidance documents and FAQs on the new Pandemic Unemployment Assistance (“PUA”) program.
      • Guidance on the intersection with benefits for NYS employees can be found from this fact sheet and FAQs.
      • Self-employed individuals in NYS can refer to this guide on how to apply for unemployment insurance benefits.
      • Connecticut employees can refer to a centralized Connecticut COVID-19 resources link for Q&As on unemployment insurance benefits, as well as on paid sick leave, wage and hour, and Connecticut paid sick leave.
      • New Jersey employees can refer to the state’s COVID Information Hub on unemployment benefits for information on eligibility and how to apply for benefits.
    • Paycheck Protection Program (“PPP”) – provides forgivable loans equal to 10 weeks of payroll and benefit costs (subject to a salary cap) to businesses with 500 or fewer employees that have been substantially, adversely impacted by COVID-19, to be used for payroll and related business expenses.  The Small Business Administration has created a central PPP webpage with information and links to additional resources, including the SBA’s  Interim Final Rule related to PPP eligibility and calculations for individuals with self-employment income. 
    • Employee Retention Credit - a fully refundable payroll tax credit equal to 50 percent of an employee’s qualified wages in any given quarter (subject to a cap of $5,000 per employee for the year) for employers that suspend operations or experience substantial declines in gross receipts due to COVID-19.  The IRS has issued FAQs on the tax credit.

     

    • Federal Emergency Paid Sick Time & Emergency FML Leave - The federal government has taken a two-pronged approach to providing paid time off and job guarantees for employees who are unable to work due to health, child care, or public safety reasons stemming from COVID-19.  
      • Employers should have posted or distributed to employees as of April 1 a mandatory poster issued by the U.S. Department of Labor with regard to emergency paid sick leave.
      • The U.S. DOL’s subsequently issued guidance on application of the Emergency Paid Sick Leave laws, which took effect April 1, 2020, can be accessed here.   

     

    • New York State Emergency Paid Sick Leave – New York State has also taken a two-pronged approach to paid time off for employees who are unable to work due to health or child care reasons stemming from COVID-19, which is comprised of emergency paid sick leave benefits and enhancements to the existing NYS Short-Term Disability and Paid Family Leave benefits.
      • The NYS DOL has issued FAQs on COVID-19-Related Paid Leave that address the benefits available, eligibility, and how employees can obtain an order of quarantine to qualify for the leave.

     

    • New Jersey Emergency Paid Sick Leave - New Jersey also expanded the existing bases for employees' use of NJ paid sick leave, NJ Family Leave, and Temporary Disability Insurance (“TDI”) benefits to include Covid-19 related reasons, and eliminated the 7-day waiting period for TDI benefits.  New Jersey has compiled links to information on all these benefits and more on its COVID Information Hub.
    • Connecticut Paid Sick Leave – Note that Connecticut has not passed anything equivalent to the New York and New Jersey emergency paid sick leave laws.  Only employers with 50 or more employees have any obligation to provide paid sick leave, and that is per a long-standing law that is not pandemic-specific.
    • WARN Act Notice – This applies to employers with 100 or more employees and may require 60 days’ advance notice for large-scale layoffs that extend beyond six months unless they fall within a recognized exception.  Recognized exceptions include natural disasters and unforeseeable business circumstances.
      • New Jersey has delayed the effective date of the recent amendments to its WARN Act until 90 days following the termination of the current state of emergency.  Also, retroactive to March 9, COVID-19-related mass layoffs are exempted from the NJ WARN Act, which has been modified to exclude notice obligations for mass layoffs caused by a “national disaster or a national emergency.”
      • New York has not suspended its WARN Act notice requirement, but rather the NYS DOL has announced on its  website that a business unexpectedly forced to close due to COVID-19 should identify the relevant circumstances to the DOL, which will determine whether the situation falls within an existing exception for unexpected circumstances beyond an employer’s control.

     

    The EEOC also temporarily suspended the issuance of right to sue notices, unless requested by a charging party.

    New Jersey Infectious Disease Protection

    • New Jersey implemented a new law that prohibits employers from terminating or otherwise penalizing employees if they request or take time off from work because the employee has, or is likely to have, an infectious disease that may infect others in the workplace. Employees are required to provide certain documentation to support their medical status. Employers must then reinstate the employee to the same position, including pay and other benefits upon their return to work.

     

     

    • OSHA Guidance – OSHA has issued guidance on Preparing Workplaces for COVID-19.  Additional OSHA guidance, including for specific industries, can be accessed on a dedicated OSHA COVID-19 Response page
      • OSHA also recently issued Interim Enforcement guidance that, aside from employers in the healthcare and emergency response industries and correctional institutions, employers need not engage in an extensive analysis of whether an employee’s contracting of COVID-19 is work-related and therefore an OSHA-reportable incident except where there is objective evidence, that was reasonably available to the employer, of a work connection, such as where a number of employees who work closely together all contract the virus.