Gibbons Law Alert

Gibbons Law Alert

Category: Family Leave

What Employers Should Know About the EEOC Proposed Rulemaking on the Pregnant Workers Fairness Act

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Posted in Family Leave

On August 25, 2023

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. The PWFA protects pregnant employees and job applicants by filling the gaps in protections for pregnant workers under existing federal laws (Title VII, Americans with Disabilities Act (ADA), Family Medical Leave Act). Specifically, the PWFA imposes broader and more widely available reasonable accommodation responsibilities for employers with 15 or more employees. On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) posted its Notice of Proposed Rulemaking (NPRM), to implement the PWFA. On August 11, 2023, the EEOC published the NPRM for public comment in the Federal Register. The purpose of this alert is to present a high-level overview of particularly relevant considerations within the proposed regulations and highlight some potential pitfalls and protections under the PWFA of which employers should be aware. As noted above, the intention of the PWFA is to fill in gaps existing within federal legislation, while at the same time streamlining the accommodation process and making it less burdensome for workers affected by pregnancy, childbirth, or related medical conditions. In essence, the PWFA aims to make pregnancy accommodations more accessible, while still preserving the spirit of the interactive accommodation process. Indeed, there are many similarities in the PWFA and the ADA interactive process. In addition, the PWFA...

IRS Issues Guidance on an Employee’s Reduction in Hours and Involuntary Termination of Employment to Qualify for the 100 Percent COBRA Premium Subsidy

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Posted in Employee Benefits / Family Leave / Federal Legislation / Insurance / Sick Leave

On June 2, 2021

The American Rescue Plan Act of 2021 enacted on March 11, 2021 (the “Act”) provides a federally-funded, 100 percent subsidy for the premiums for COBRA continuation coverage from April 1, 2021 to September 30, 2021 for assistance eligible individuals. On May 18, 2021, the IRS issued Notice 2021-31, which provides comprehensive guidance on all aspects of the subsidy. The Notice is in the form of 86 questions and answers and spans 41 single-spaced pages. This news alert focuses on the guidance dealing with the two events that trigger entitlement to the subsidy: a reduction in hours and an involuntary termination of employment. The guidance on reduction in hours is found at Q&A 21 to 23, and on involuntary termination of employment at Q&A 24 to 34. Definition of Assistance Eligible Individual The Act defines an assistance eligible individual as an individual who: Is a qualified beneficiary for a period of COBRA continuation coverage that includes the months between April 1, 2021 and September 30, 2021; Is eligible for COBRA continuation coverage due to a reduction in hours or an involuntary termination of employment other than for gross misconduct; and Elects COBRA continuation coverage. Other COBRA qualifying events, such as a voluntary termination of employment, a child’s aging out of dependent status, or divorce, do not...

FFCRA Benefits Become Optional and Unemployment Benefits Change With New Stimulus Package

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Posted in Employee Benefits / Family Leave

On January 7, 2021

On December 27, 2020, President Donald Trump signed the fourth major COVID-19 response bill into law. The stimulus package includes focused relief in a variety of areas (see our December 21, 2020 post), but two important elements are worth highlighting for employers. First, there have been several changes to pandemic-related unemployment insurance benefits since guidelines were first provided last spring. Second, the emergency paid sick leave and expanded family and medical leave benefits provided under the Families First Coronavirus Response Act (FFCRA), explained here, expired on December 31, 2020 and were not extended, but employers who opt to offer them remain eligible for tax credits. Unemployment Insurance (UI) Benefits Supplement and Extension The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) provided eligible recipients of state unemployment benefits with an additional $600 per week in federal benefits, which expired in July 2020. The new stimulus package provides eligible individuals who are already collecting state-provided unemployment benefits with an additional $300 per week in federal benefits ($300 less than the last stimulus relief package) for up to 11 weeks through March 14, 2021. These payments, however, are not retroactive to July 2020. The new stimulus package also extends the Pandemic Unemployment Assistance (PUA) and Pandemic Emergency Unemployment Compensation (PEUC) programs. PUA provides benefits to individuals...

Reopening Considerations for New Jersey: What Employers Need to Know About OSHA

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Posted in Family Leave / Labor

On June 17, 2020

As New Jersey begins to reopen under Governor Murphy’s reopening plan and more employees prepare to return to their physical workplaces, employers must continue to navigate a myriad of federal, state, and local guidance regarding how to best protect their workforces and prevent the spread of COVID-19. While many employers, particularly those outside of the construction industry, may not be used to regular dealings with the United States Department of Labor Occupational Safety and Health Administration (OSHA), all employers must consider OSHA’s COVID-19 Guidelines as they prepare reopening plans. While OSHA’s reopening guidance is advisory in nature, employers should remember that the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause (Section 5(a)(1)) requires all employers to provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm, which could include exposure to COVID-19. Thus, employers should be careful to ensure that their reopening plans comply with OSHA’s guidelines (along with more stringent state or local guidelines if they exist). The OSHA Guidelines categorize risk of worker exposure to COVID-19 from low to very high and lay out specific measures of protection that are recommended at each risk level. Employers should consult this portion of the Guidelines for specific guidance. The Guidelines also outline more...

New York Issues Guidance on Use of Sick Leave and Paid Family Leave for COVID-19

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Posted in Family Leave

On May 20, 2020

As discussed previously, New York recently passed a COVID-19 sick leave law that provides job protection and paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“COVID-19 quarantine leave” or “quarantine leave”). New York State has since published guidance (“Guidance”) and FAQs relating to the COVID-19 sick leave law (“FAQs”), which discuss, among other things, how employees may be compensated under the new law, through a combination of benefits that include COVID-19 sick leave, New York’s Paid Family Leave (PFL), and short-term disability (DBL) benefits while in quarantine. Under the COVID-19 sick leave law, as clarified by the Guidance and FAQs: An employee who works for a small employer – one with ten or fewer employees as of January 1, 2020 (with a net income of less than $1 million in the prior tax year) – and is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, department of health, local board of health, or any other government entity authorized to issue such an order due to COVID-19 (“quarantine order”) is entitled to unpaid sick leave until the termination of the quarantine order. The employee may also be eligible to receive compensation for the duration...

New Jersey Further Expands Family Leave and Temporary Disability Benefits in the Wake of COVID-19

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Posted in Employee Benefits / Family Leave

On April 29, 2020

On April 14, 2020, Governor Phil Murphy signed into law Senate Bill S2374, which further amends the New Jersey Family Leave Act (FLA) and the New Jersey Temporary Disability Benefits Law (TDBL), including the Family Leave Insurance program (FLI), expanding on prior amendments signed into law on March 25, 2020 (included in Senate Bill 2304), as part of the state’s initial response to the early stages of the COVID-19 pandemic. These amendments are effective immediately and apply retroactively to leave taken on or after March 25, 2020. As the pandemic has continued, so too have the Legislature’s attempts to address its impact on New Jersey citizens, which have included efforts to protect New Jersey employees who are in need of temporary leave and/or income replacement benefits as a result of circumstances caused by COVID-19. Prior to the COVID-19 related amendments, eligible employees working for covered employers could, under the FLA, take up to 12 weeks of job-protected leave in any 24-month period for the following three reasons: The birth of a child, including a child born pursuant to a valid written agreement between the employee and a gestational carrier The adoption or foster care placement of a child Caretaking for a family member with a serious health condition As discussed in our prior blog post,...

The U.S. Department of Labor Issues Updated Guidance on the FFCRA’s Paid Leave Provisions

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Posted in Family Leave

On April 7, 2020

As the spread of COVID-19 continues to upend our day-to-day routines and creates new questions for employers and employees alike, the U.S. Department of Labor (DOL) has issued and updated guidance on the Families First Corona Response Act (FFCRA), which became effective on April 1, 2020. The FFCRA provides for two types of paid leave: leave under the Emergency Paid Sick Leave Act (EPSLA) and leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). As a follow-up to our recent blog post, which explored the new legislation in-depth, this article identifies and explains the key points in the DOL’s most recent guidance on the FFCRA’s leave provisions. Which Employers Must Comply with FFCRA’s Paid Leave Provisions? Employers who have fewer than 500 employees at the time an employee requests to take leave are governed by the FFCRA. In calculating the number of employees for coverage purposes, employers must take into account full-time and part-time employees, employees who are already on leave, temporary employees who are jointly employed with another employer, and day laborers. Independent contractors are not considered employees for purposes of calculating the 500-employee threshold. Generally, two or more entities are separate employers for purposes of the 500-employee threshold, unless the entities meet the integrated employer test under the Family and Medical...

New Jersey Enacts and Expands Laws Providing Employees With Enhanced Benefits and Protections Resulting From COVID-19

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Posted in Family Leave

On March 30, 2020

New Jersey Governor Phil Murphy has recently signed into law two important bills – one (AB 3848) providing job protection to certain employees impacted by COVID-19 (“the COVID-19 Act” or “Act”), and the other (S2304) expanding the scope of the New Jersey Earned Sick Leave Law (ESLL), the New Jersey Family Leave Act (FLA), and the New Jersey Temporary Disability Law (“TDBL”). The Act, along with the amendments to the existing laws referenced above, are discussed below and are intended to increase protection and benefits to employees as a result of COVID-19. Job Protection for Certain Employees Who Take Time Off Due to Infectious Disease Under the COVID-19 Act, during the Public Health Emergency and State of Emergency declared by Governor Murphy concerning the coronavirus, employers are prohibited from terminating or refusing to reinstate an employee who requests or takes time off from work, for a specified time period, at the recommendation of a licensed New Jersey medical professional because the employee has or is likely to have an infectious disease that could infect others in the employee’s workplace. Upon the employee’s return from time off, he or she must be reinstated to the same position held when leave began, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of...

Employers Must Act Fast: Families First Coronavirus Response Act Signed Into Law

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Posted in Employee Benefits / Family Leave

On March 23, 2020

To follow up on our recent blog post, “Workplace Planning for Coronavirus Concerns,” we are summarizing for our clients the Families First Coronavirus Response Act (FFCRA), which President Trump signed into law on March 18, 2020. The House of Representative passed an earlier bill on March 14, but – two days later – revisited and significantly altered the bill on March 16, before sending it to the Senate for consideration. On March 18, the Senate passed the revised House version with no changes, and, that same day, the amended bill was signed into law. The FFCRA takes effect not later than April 2, 2020 (15 days after its enactment) and expires on December 31, 2020. With respect to employers, it contains certain provisions of particular note, including the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, discussed below. Emergency Family and Medical Leave Expansion Act The Emergency Family and Medical Leave Expansion Act (“Emergency FMLA” or the “Act”) applies to employers with fewer than 500 employees (“covered employers”). Employees who have been employed by a covered employer for 30 calendar days are eligible for up to 12 weeks of emergency paid family medical leave due to a “qualifying need” arising from “a public health emergency” with respect to COVID-19...

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