If your workplace offers generous paid sick leave/personal time off, consider yourself lucky. Many small and locally-owned businesses operate on thin profit margins that don’t allow employers to offer much paid leave, if any. Unfortunately, these are the same businesses most directly impacted by the state-mandated closures and curfews prompted by COVID-19 – namely, restaurants and bars, gyms and athletic/dance studios, salons and spas, and many retail shops.
As of the date of this article, Congress is hammering out the details of a large-scale direct relief package for taxpayers and businesses. In the interim, if you are prevented from working due to the coronavirus and have no paid leave available, the New Jersey Earned Sick Leave Law, as well as New Jersey’s Temporary Disability Insurance, Unemployment Insurance, and Family Leave Insurance programs, may provide some help.
The Earned Sick Leave Law
New Jersey’s Earned Sick Leave Law (“ESL”) provides that employees accrue one (1) hour of paid time off for every thirty (30) hours worked (up to forty (40) hours per benefit year) to care for themselves or a family member. Importantly, the Law applies to all employers, even those who already provide paid leave. As such, ESL may prove useful if the novel virus forces you to exhaust your available paid leave.
According to a recent guidance by the New Jersey Department of Labor, ESL may be used if you are unable to work because:
- You’ve tested positive for COVID-19 or have symptoms of COVID-19 (such as high fever, cough and shortness of breath);
- You were exposed to COVID-19 and have been directed to self-quarantine. NOTE: If your exposure to COVID-19 occurred during the performance of your work (e.g., you provided medical care to a COVID-19 patient), then you may also be eligible for Workers’ Compensation benefits;
- Your child’s school or daycare was closed by a public official due to COVID-19 and you need to provide supervision and care;
- Your workplace was ordered shut by a public official due to COVID-19;
- Your healthcare provider has directed you not to report to work due to a pre-existing health condition that puts you at greater risk for contracting COVID-19;
- You need to care for a family member who has been diagnosed with COVID-19 or displays symptoms of COVID-19.
Temporary Disability Insurance
Given the high contagion rate of this virus and current predictions for the duration of its stay, it’s likely many workers will exhaust their ESL. In that event, temporary disability insurance benefits may be available if:
- You test positive for COVID-19 or display symptoms of COVID-19;
- Your healthcare provider has directed you not to report to work due to a pre-existing health condition that puts you at greater risk for contracting COVID-19;
According to the New Jersey Department of Labor, should you seek temporary disability insurance under the above circumstances:
“A claim would need to be filed online at myleavebenefits.nj.gov; the health care provider would give the diagnosis and the duration the individual is expected to be out of work. Available wage records on file would determine the amount of TDI benefits. It is against the law for employers to retaliate against employees for taking or seeking to take TDI benefits.”
Unemployment Insurance
If:
- Your workplace was ordered shut by a public official due to COVID-19
Then you may be eligible for Unemployment Insurance after the exhaustion of your ESL. The New Jersey Department of Labor has indicated your claim will be treated as a “temporary layoff”:
“A claim would need to be filed at myunemployment.nj.gov, preferably online, and the benefit amount would be determined through available wage records. This claim would initially be considered a temporary layoff, thus suspending the provision that the worker be able, available and actively seeking work. As of now [March 17, 2020], a layoff lasting longer than eight weeks would require the person to be able, available and actively looking for employment.”
Assistance Under the New Jersey Family Leave Act
Employees who exhaust their ESL caring for a family member diagnosed with or displaying symptoms of COVID-19 may apply for Family Leave Insurance. Again, the New Jersey Department of Labor explains:
“A claim would need to be filed at myleavebenefits.nj.gov and the family member’s health care provider would give the diagnosis and the expected length of time the caregiver will need to be out of work. Available wage records would determine the amount of benefits. It is against the law for employers to retaliate against employees for taking or seeking to take Family Leave benefits.”
Job-Protected Unpaid Leave
While this article addresses forms of paid leave or insurance to address lost wages due to the coronavirus, please remember that the New Jersey Family Leave Act and the federal Family and Medical Leave Act offer job-protected unpaid leave to care for a family member with a serious health condition such as diagnosed or potential COVID-19. Moreover, the federal Family and Medical Leave Act extends such leave to workers who cannot perform the essential functions of their job due to their own serious health condition, such as diagnosed or potential COVD-19. Each of these Acts, however, has their own requirements as to which employers/employees are covered. When in doubt, consult your employer’s HR Department or an attorney.
The coronavirus is creating a complicated legal landscape for New Jersey employers and workers alike. If you have a question about your current eligibility for leave and/or benefits, call our offices today for a free consultation.
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