States respond to the coronavirus: Latest disability and leave expansions

On May 12, the U.S. House of Representatives introduced the next round of COVID-19 response legislation. The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act with over 1,800 pages and a $3 trillion price tag includes labor and employment provisions, which both expand prior laws and add new proposals.

Key provisions which impact leave rights in the House’s HEROES Act relief package, include:

Expanding the Emergency Family and Medical Leave Act (EFMLA) by extending the required benefit to private-sector employers, regardless of size
Expanding the reasons for which paid EFMLA leave may be taken
Providing that “emergency” EFMLA does not count against employees’ existing FMLA banks.
Limiting EFMLA concurrency with other paid leave employees have available
Expanding the Emergency Paid Sick Leave Act (EPSLA) to employers of any size
Eliminating the health care, first responder, and small employer exemptions to the EPSLA and EFMLA

Sedgwick is closely following this legislation and will be prepared to provide guidance if and when the measure passes. As is usually the case, significant changes are likely to occur throughout the legislative process. Monitor our blog for continued updates.

The coronavirus and ongoing COVID-19 outbreak have required state disability and leave programs to remain flexible and take action. We’ve been watching and sharing analysis as states quickly expand provisions to accommodate the new realities their working populations are facing each day. Here’s a look at the latest updates and further resources to help you stay connected as these programs evolve.

Most notably, bookmark this post as well as our statutory state matrix sharing a comprehensive look at state program requirements linked to COVID-19.

Updates 4/22/20

San Francisco

Public Health Emergency Leave, effective April 17, 2020, businesses with 500 or more employees worldwide must provide up to 80 hours of paid Public Health Emergency Leave (PHEL) to each employee who performs work in San Francisco. Employees may use this leave when they are unable to work (or telework) due to specified reasons related to COVID-19. The leave is in effect only during the local emergency through June 17, 2020 unless reenacted.

New Jersey

Bill 2020 NJ S 2304 (effective 3/25/20) and Bill 2020 NJ S 2374 (signed 4/14/20 and retroactive to 3/25/20) have broadened the definition of a “serious health condition” under the New Jersey Temporary Disability Insurance (NYTDI) and New Jersey Family Leave Insurance (NJFLI) programs. Employees may now qualify for benefits if they need to take time off from work during a public health emergency because they are diagnosed with, or suspected of exposure to, a communicable disease or they need to take care of a family member diagnosed with, or suspected of exposure to, a communicable disease.

A 7-day waiting period is applied except for cases related to an epidemic of a communicable disease (effective 3/25/20) and cases related to donation of organ or bone marrow leave (effective 5/20/20).

Medical certification is required, specifically:

The issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the family member or employee may jeopardize the health of others; and
The recommendation, direction, or order of the provider or authority that the employee or family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

In addition, NJFLI benefits are now available if schools are closed because of COVID-19 and a worker has no childcare.

Importantly, an employee can choose between receiving either NJ FLI/disability or unemployment. With the passage of the Families First Coronavirus Response Act, unemployment may pay a higher benefit than the New Jersey statutory benefit.

New Jersey unemployment benefits may be available if a worker is mildly ill with COVID-19. Unemployment benefits are now available in the following scenarios:

Worker was exposed and quarantined. Business remains open.
Worker is caring for a sick family member.
Schools are closed because of COVID-19 and the worker has no childcare.

New Jersey expands Family Leave Act, Temporary Disability Insurance and Family Leave Insurance

Effective March 25, 2020, New Jersey has enacted changes to the New Jersey Family Leave Act (NJFLA), New Jersey Temporary Disability Insurance (NYTDI) and New Jersey Family Leave Insurance (NJFLI) for public health emergencies, such as COVID-19. There is no sunset in the bill, which allows for the following provisions to apply during a state of emergency declared by the governor or when indicated to be needed by the commissioner of health or other public health authority.

NJFLA

NJFLA has expanded the definition of serious health condition to include:

An illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of a family member of the employee due to:
- The issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of a family member may jeopardize the health of others; and
- The recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined because of suspected exposure to the communicable disease.

NJFLI

NJFLI has expanded to include employees’ own serious health conditions. The definition of a serious health condition now includes:

Illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of the employee or family member of the employee due to:
- The issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the employee or family member may jeopardize the health of others; and
- The recommendation, direction, or order of the provider or authority that the employee or family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

NJTDI

NJTDI has expanded to include family members suffering from an accident or sickness. The definition of sickness now includes:

An illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of the employee or family member of the employee due to:
- The issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the family member or employee may jeopardize the health of others; and
- The recommendation, direction, or order of the provider or authority that the employee or family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

There is no waiting period for this expansion.

New York disability and leave updates

On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of the novel coronavirus, or COVID-19. The law requires job-protected, employer-provided paid sick leave and additional disability (NY DBL) and paid family leave (NY PFL) benefits for employees who cannot work or telework due to COVID-19 related reasons.

Additional statutory state updates

Of note, both California and Rhode Island have made changes to their programs in response to COVID-19, with impact to their waiting period waivers and medical certification waivers.

More detail can be found in our recent blog, Coronavirus – statutory state updates.

You can also view the recording of DMEC’s recent virtual compliance conference session, “Coordination of Benefits: A Practical Guide for Employers.” I had a chance to join the panel for this discussion and we shared ways for communities and businesses across the country to respond to late-breaking legislative changes and mandatory precautionary measures related to the coronavirus, including the expansion of paid time off and updates to state legislation.

Ongoing coronavirus updates

Sedgwick continues to share the latest news, service updates and guidance for clients as they protect the health and safety of their workforces during this unprecedented time. Stay tuned to our news feed for additional coronavirus coverage. And if there’s anything else we can do to support you, let us know in the comments section.

Tagged COVID-19, coronavirus, FMLA, FMLA, ADA, ADAAA, DMEC, Legislation, compliance complexities, Leave, paid leave, PFML, Absence, Absence management, workforce absence, paid family leave, sick leave, Compliance and regulatory issues, Quarantine, Statutory state, Disability, family leave, New Jersey, NEw York, California, Rhode Island, Disability and leave, San Francisco, Regulatory change + Compliance