COVID-19 Legislation Podcast

Podcast: Line on LeaveThe Hartford’s Janîce Malcolm-Beeker, Asst. General Counsel, and host, Laura Marzi, Chief Marketing Officer of Group Benefits, explore new state and federal emergency Paid Leaves that provide immediate economic relief to employees who cannot work for reasons related to the unprecedented COVID-19 pandemic.
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Laura: Hello everyone, I’m Laura Marzi, the host of The Hartford’s “Line on Leave” podcast.
Who could have predicted that when we began this podcast last just year to discuss trends in Paid Family and Medical Leave, how absolutely essential Paid Leave has become for millions of Americans today.
We are living in unprecedented times because of the COVID-19 pandemic which has turned our lives – and workplaces – upside down.
With me today to talk us through the new landscape of Leave is Janîce Malcolm-Beeker. Janîce is an associate counsel here at The Hartford and one of our foremost authorities on employee Leave and Disability. Welcome Janîce.
Janîce: Thanks so much for having me, Laura. And you are right, it is indeed a new landscape.
More than ever, employees need some sort of relief. Many of them can’t work because of this COVID-19 quarantine crisis, they may be under an isolation or quarantine order or they have to stay home because their children’s schools or daycare centers are closed. As you said Laura, this is unprecedented, not just here, it’s global.
But the response at the federal and state level has truly been unprecedented as well. The federal government and several states have either created new laws or they have revised existing Leave laws at rapid speed to be able to bring expeditious help to workers who were negatively impacted by this virus. 
Laura: Exactly. And you know, right off the top, I wanted to let our listeners know that Janîce and the rest of our legal team has been closely tracking all of the legislation that has been passed to keep our employer and broker partners updated. 
And because we’re one of the leading Leave Management1 and Disability2 carriers, The Hartford has quickly updated its claims and systems platforms and processes to administer the new emergency Leave laws in accordance with all this legislation.
I wanted to let our listeners know that Janîce has published a number of extremely informative and detailed pieces on the major federal and state emergency COVID-19 leave legislation and what that means to employers and their employees.
So before we get into some of the details today, you can go on your own and find those articles, FAQs, a list of new state Leave Laws and a lot of other helpful resources on The Hartford's Paid Family and Medical Leave Resource Center. When you get into our Paid Family and Medical Leave Resource Center, you will get a lot of the articles and helpful information that Janîce has personally authored.
So thank you, Janîce, for your time today. And I know you have been extremely busy staying current on all the new laws. You’ve given us such great detail in your articles – I was wondering for our listeners if you can you give us a quick overview of some of the major developments.
Janîce: Certainly Laura, I can do that. So let’s go back to March 18 – that’s the day when two major pieces of Leave legislation were passed – one at the federal and the other at the state level.
So, Congress passed the Families First Coronavirus Response Act.
That emergency law provides for 12 weeks of Paid Leave through a combination of newly enacted emergency Paid Sick Leave as well as an expansion of Title I of the Family and Medical Leave Act of 1993 which we fondly call FMLA.
But now due to the COVID-19 impacts, the FMLA has temporarily been expanded to provide for Paid Leave – I’ll get into the specifics in a second.
A few hours after that, the state of New York approved emergency legislation that gives employees one to two weeks of Paid Sick Leave, depending on the size of their employer.
Laura: Ok, so starting at the top. What are the key points of the federal law?
Janîce: The federal Act created two major components: The Emergency Paid Sick Leave Act and The Emergency Family and Medical Leave Expansion Act. And that applies to businesses with fewer than 500 employees and many government agencies. But the Act does allow small businesses that have fewer than 50 employees to qualify for an exemption if Leave requirements would jeopardize the viability of the business as a continuing concern. Employers pay the benefits in exchange for 100 percent refundable Social Security payroll tax credit. And this is a temporary Leave will sunset – it will expire at the end of 2020.
As I mentioned a moment ago, the Federal Act makes temporary changes to the FMLA, which has provided 12 weeks of unpaid job-protected Leave for illness and certain family-related reasons. The new law introduces a paid element to FMLA, but only for employees who can’t work – and that includes teleworking at home, and if they need to care for their minor children whose school or daycare has closed due to a COVID-19 precaution.
The first two weeks of emergency FMLA are not paid under the FMLA, but employees are eligible to use 10 days of the newly enacted emergency Paid Sick Leave or if they have other available accrued company Paid Leave, they can use that to covered for those first 2 weeks. The remaining 10 weeks are paid under the emergency FMLA, and all those 12 weeks are job-protected. The 10 days of emergency Paid Sick Leave can be used by eligible employees to care for themselves or for others due to a quarantine or illness, and also if they need to care for a minor child whose daycare of school is closed due to COVID-19 concern.
Laura: Ok got it, so with so many people unable to work due to either illness, quarantine, or staying home with their kids when they’re not in school, income replacement is definitely essential. So can you just highlight what the paid benefits are?
Janîce: Certainly. For the Emergency FMLA, the benefit is two-thirds or 67% of the person’s regular rate of pay, but it would be capped at $200 per day and $10,000 overall. For Emergency Paid Sick Leave if the employee can’t work or telework, they can get up $511 per day or $5,110 in total if they need the Leave for themselves, or they can up to $200 per day or $2,000 in total if the employee’s Leave is for another individual. 
Laura: Got it ok, so these are in effect from now till the end of this year?
Janîce: That’s correct. But that’s not the case with the recent legislation in New York and recently, New Jersey.
So the New York law that provides for emergency Paid Sick Leave – it does not have a sunset provision, so someone could be on Paid Leave until a quarantine order has been lifted. And if someone needs to be out longer than the emergency paid sick leave provides, they may be eligible to receive emergency NY Disability Benefits or Paid Family Leave. Now the Emergency PFL is available when the employee is not able to work due to a quarantine order, or the employee has to care for their child, under 18 of course, who is subject to a quarantine order. That pays 60% of their salary up to a maximum of $840.70 per day for the duration of quarantine.
Now the Emergency Disability Benefit is available if the employee is not able to work because of an emergency quarantine order and has exhausted all Sick Leave under this Emergency New York law. But the emergency DBL is NOT available for employees who have no symptoms or haven’t been diagnosed and are physically able to work, including by remote work. Emergency PFL and Emergency Disability Benefits are also not available for an employee’s own quarantine, if they work for a company with 100 or more employees.
The emergency DBL maximum is $2,043.92, and the employees can also get the maximum PFL benefit of $840.77, but it can’t exceed the employee’s total average weekly wage.
Laura: So you talked about different states having reactions to the crisis – what was New Jersey’s response to financial impacts of COVID-19?
Janîce: Well New Jersey took a different tactic. They did not increase the amount of money that you get, they just expanded the reasons. So on March 25, the New Jersey law was passed, and it gives employees greater access to Family Leave Insurance and Disability Benefits, which are paid benefits.
While the New Jersey law was expanded in response to COVID-19 impacts, it really establishes a framework for future response for other communicable diseases during a public health emergency.
In this current COVID-19 environment, the New Jersey law allows employees to take Temporary Disability Benefits if they are ill or exposed to the disease, or if they have to stay home to help prevent the spread of the disease. It also allows employees to take Family Leave Insurance if they need to care for a family member who is also ill or quarantined due to COVID. It allows employees to use earned Sick Leave if a public health emergency requires the closure of the workplace of the employee, or the school or childcare center of the employee’s child, or a family member under their care is quarantined under the public health emergency law.
There is an unpaid Leave law in New Jersey – it’s called the Family Leave Act, and that is also available if the employee needs to care for a family member who is ill or who is quarantined due to a public health emergency like COVID.
Laura: Ok thank you for all the detail on that. Now, can you explain how all these changing state laws interact with the emergency federal legislation that you talked about at the top of the podcast?
Janîce: Sure, in the case of New York, If the Emergency federal Leave benefit is payable, then the NY benefit is not payable unless the NY benefit is greater than the Federal benefit. In that case, the difference is payable by the NY benefit. 
And in New Jersey, it appears that employees who receive emergency Paid Sick Leave from their employers under the federal Act cannot receive New Jersey Temporary Disability Benefits at the same time.
So we’re always monitoring states, other states and municipalities for expansions to their existing laws. And in fact, we have an extensive Leave Law library for our employer customers to review and keep updated with changes in all Leave laws – not just for those that are related to COVID-19, but of course that is our major focus right now Laura.
Laura: Thank you Janîce for your insight and expertise and for keeping on top of all these shifting laws.
We’re constantly updating our site with valuable information as part of our commitment to doing all we can to help our customers as well as our communities through this extremely challenging time.
Thank you to all of our listeners. We hope this has been helpful and provided answers in a time of great uncertainty.
And on behalf of The Hartford, it is our hope that everyone – our families, our customers, our communities – stay safe and healthy. We’re here for you. And thank you for listening.
1 LIMRA 2018 Absence Management / Family Medical Leave In Force Data Report (# Lives Covered).
2 LIMRA Disability In Force, 2018 Summary.
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This informational material is subject to change as The Hartford continues to receive guidance from states and municipalities. It shall not be considered legal advice. The Hartford assumes no responsibility for legal compliance with respect to an employer’s business practices, and the views and recommendations contained herein shall not constitute The Hartford’s undertaking on a company’s behalf, or for the benefit of others, to determine or warrant that an employer’s business operations are in compliance with any law, rule, or regulation. Employers seeking resolution of specific legal or business issues, questions, or concerns regarding this topic should consult their own attorney or business advisors; and employees should continue to consult their employers’ Human Resources or other employment benefits department for guidance on the application of any law, rule, or regulation.
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