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Most of Washington and many public officials across the nation contend that the $900 billion federal COVID-19 relief bill signed into law on Dec. 27 leaves much to be desired. Democrats and Republicans on Capitol Hill agree that a new iteration of the measure, known as the Coronavirus Aid, Relief and Economic Security Act, will be necessary. And with Democrats controlling the White House and both houses of Congress, that new CARES Act will likely be dramatically different than the first version, enacted nearly a year ago, as well as the bill President Donald Trump signed recently.

Labor unions and worker’s rights groups point out that the new CARES Act did not extend a requirement for businesses to provide paid sick, medical and family leave to workers to use for COVID-related reasons. That includes two weeks of paid sick leave for someone who has COVID-19 or was advised to self-quarantine because of potential exposure. And it includes 12 weeks of partially paid family and medical leave to provide childcare because the school or daycare was closed due to COVID-19. Anyone employed by a business for at least 30 days is eligible for this time off.

Those provisions are all tucked into the Families First Coronavirus Response Act, which Trump signed along with the initial $2.2 trillion CARES Act on March 27 last year. The federal mandate applied to companies with between 50 and 500 employees, but it was not extended past Dec. 31, 2020. Employers can still get the refundable tax credit through March 2021 for covering any of these kinds of paid leave to their workers. With those tax credits, the federal government is essentially picking up the tab for businesses that provide paid leave for COVID-related reasons.

Media reports suggest that Senate Majority Leader Mitch McConnell, a Kentucky Republican, blocked the requirement from being included in the CARES Act bill, instead opting for the extension of the tax break for three months. But with Democrats taking the U.S Senate, McConnell will no longer control the fate of legislation in the upper house.

Debra Lancaster, executive director of the Center for Women and Work at Rutgers University, said she expects a considerable shift once President-elect Joe Biden is sworn in on Jan. 20. “I’m sure that the new administration will seek changes in how to support households and businesses during the crisis and through recovery,” she wrote in an email.

Biden’s transition team declined to comment.

Providing those benefits is optional for now, which critics argue is a major blow for worker’s rights. And workers who’ve exhausted their paid leave are left with little cushion, noted Yarrow William-Cole, the workplace justice director for the progressive advocacy group New Jersey Citizen Action.

“It’s going to be devastating for working people, for a lot of folks who wouldn’t ordinarily qualify for paid leave, they’re really leaning on this,” said Vineeta Kapahi, a policy analyst at the progressive think tank New Jersey Policy Perspective. “They’re in this situation of having to go into work and spreading the virus or not working and not being able to feed themselves and their families,” she added. “[Employers] might choose to prioritize managerial staff, or folks that are higher paid … folks that are lower paid, that they might deem to be easier replaced, will likely be hurt the most.”

With daily cases, fatalities and total hospitalizations from COVID-19 all increasing through the fall and winter, the potential inability for workers to take off for sick time could be particularly problematic. “If you aren’t feeling okay and you can’t afford to stay at home and you can’t work from home, the pressure is to go to work,” Lancaster said. “The burden of this pandemic is really weighting very heavily, particularly on low-wage workers and workers that tend to have less generous benefits. You can’t work in an Amazon warehouse from home.”

The lack of required paid family leave could be particularly problematic for many parents working from home while their children remain home-bound because of school and daycare closures, according to Kapahi. Telecommuting during the pandemic “doesn’t necessarily mean you can provide childcare while working from home,” Kapahi said. “There are a number of reasons you wouldn’t be able to do your job and supervise your child at the same time.”

Employers and business groups argue that it’s good business to maintain a safe and healthy workplace. And many businesses contend that they’ve taken measures to sanitize workspaces and ensure social distancing of workers and customers on the premises.

“NJ manufacturers have remained open despite the challenges and done so with careful planning and understanding,” said Laura Fisher, who heads human resources and grant support at the non-profit New Jersey Manufacturing Extension Program, in an email. “As the challenges continue and even increase in some areas, I am happy to see that these businesses are being provided with flexibility and needed relief in the form of the tax credit.”

And Marilou Halvorsen, president of the trade group the New Jersey Restaurant and Hospitality Association, said the FFCRA has been helpful for both workers and business owners. “No one wants employees to feel the pressure of having to come to work when they are sick,” she said in an email.

But without the requirement, many employers “aren’t going to bother with the headache,” said William-Cole.

STATE PROVISIONS

For now, the authority the state government has comes from a variety of laws requiring paid sick and family leave, temporary disability insurance and job protections for workers who take advantage of paid family leave. And “in a lot of ways, New Jersey is absolutely a leader,” said Kapahi, albeit with some holes in the programs.

Yana Rodgers, an economist at the Rutgers Center for Women and Work, told NJBIZ in April that the FFCRA “compliments what New Jersey already has.” For example, New Jersey already requires employers to provide 40 hours of paid sick leave each year.

Going beyond what was required under federal law, New Jersey’s sick leave covers workers who refuse to go to work at a business that stays open in defiance of the shutdown orders meant to stop the spread of COVID-19; an employee at an “essential retail business” who decides to stay home and comply with social distancing; and health care workers who are advised to self-quarantine.

New Jersey’s family leave program provides 12 weeks of partial pay and unlike the federal version, does not exempt employers of any size. The one exception is a feature of the New Jersey Family Leave Act that does not require employers with less than 30 workers to offer employes their position back after taking family leave, paid or unpaid. A measure stalled in the state Senate would remove that exemption.

New Jersey is one of eight states, along with Washington, D.C. and Puerto Rico, that offers temporary disability insurance for long-term injuries and illnesses. The others are California, Connecticut, Massachusetts, New York, Oregon, Rhode Island and Washington, according to A Better Balance, which tracks and compares paid sick and family leave policies by state.

“New Jersey is one of few states that already had paid family and medical leave insurance and earned sick leave policy on the books before the crisis hit,” Rodgers said in April. “The U.S. still has no national legislation to provide these benefits; both the CARES Act and FFCRA are emergency benefits specific to the coronavirus pandemic.”

But a number of proposals could strengthen what New Jersey already has on the books, and those measures could be more vital as federal job protections expire. For one, lawmakers could approve a bill that would create emergency paid sick days for essential workers – such as food service and transit – so they have 15 days instead of the existing five days. “If you’re required to quarantine for two weeks, it’s not super helpful” to have just five days, said Kapahi. “The majority of folks can’t afford to take unpaid sick leave.”

And New Jersey paid family leave eligibility only kicks in for workers who’ve been employed at least a year for a business and worked no less than 1,000 hours. In the interim, New Jersey labor law allows up to 90 days of time laid off or furloughed to count as time that someone worked for that employer. That requirement should be lifted, at least for the emergency, William-Cole and Lancaster suggested.