New York State Emergency Paid Sick Leave
In response to the ongoing COVID-19 public health emergency, Governor Cuomo guaranteed workers job protection and financial compensation in the event they are subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the Department of Health, a local board of health, or any governmental entity authorized to issue such an order due to COVID-19. According to the new COVID-19 Paid Sick Leave Law, an employee would need to have a formal notice from any of the aforementioned governmental entities indicating that such employee was, in fact subject to an order of quarantine, in order to qualify for benefits thereunder. The State of New York has issued detailed Guidance on how an employee can obtain such an order from their Local Department of Health.
The new Paid Sick Leave Law (the “Law”) provides that certain employers in New York State are now required to provide at least five (5) days of job-protected paid sick leave to employees who need to take leave because they, or their minor dependent child, are under a mandatory or precautionary order of quarantine or isolation due to COVID-19. The amount of paid sick leave an employer is required to provide depends on the number of employees the employer had, as well as the employer’s net income.
Employers with 1-10 employees (as of January 1, 2020) and a net income of $1 million or less are not required to provide new paid sick days; employees should use their Paid Family Leave and/or disability benefits. Employers with 1-10 employees (as of January 1, 2020) and a net income of greater than $1 million must provide at least five (5) additional paid sick days. Employers with 11 to 99 employees (as of January 1, 2020), regardless of their net income, must provide at least five (5) days paid sick leave, then unpaid sick leave until the termination of any quarantine or isolation.
In all instances, the paid/unpaid leave noted provided under the Law must be provided without loss to any other accrued sick leave provided by the employer, that the employee has available. Consequently, this leave will be in addition to any other employer-provided sick leave.
The new law also allows employees who receive less than fourteen (14) days of quarantine-related paid leave (i.e., employees of employers with less than 100 employees) to use existing New York Paid Family Leave (NYPFL) and disability benefits for the remainder of the quarantine or isolation period. The Law expands the coverage of “disability,” however, to expressly cover an employee’s inability to work as a result of a quarantine or isolation order, and expands the coverage of NYPFL to expressly cover an employee’s leave from work due to such an order, or if the employee’s dependent child requires care due to such an order. The Law also states that NYPFL and disability benefits will run concurrently. Employees will be able to earn a weekly maximum of $840.70 in NYPFL benefits and $2,043.95 in disability benefits, and the seven-day waiting period to collect disability benefits for these purposes has been eliminated.
Federal Emergency Paid Sick Leave
Similar to the Law mentioned above, the Families First Coronavirus Response Act (the “FFCRA”) requires some employers to offer employees new or additional paid sick leave, and/or expanded family and medical leave, for specific reasons connected to COVID-19, as of April 1, 2020.
According to the United States Department of Labor, employees of a “covered employer” are eligible for:
- Two (2) weeks of paid sick leaveat the employee’s regular rate of pay where the employee is incapable of work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or suffering from COVID-19 symptoms and seeking a medical diagnosis; or
- Two (2) weeks of paid sick leaveat two-thirds the employee’s regular rate of pay because the employee is unable to work due to a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition; and
- Up to an additional ten (10) weeks of paid expanded family and medical leaveat two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least thirty (30) calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and nearly all private employers with fewer than five hundred (500) employees, though certain provisions may not apply to certain employers with fewer than fifty (50) employees.
On the other hand, most employees of the federal government are covered by Title II of the Family and Medical Leave Act (the “FMLA”), which was not amended by the FFCRA, and are therefore not covered by the expanded family and medical leave provisions thereof. However, federal employees covered by Title II of the FMLA are covered by the paid sick leave provision. Finally, small businesses with fewer than fifty (50) employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business.
Moreover, as mentioned above, employees may qualify for the additional emergency paid sick leave only if the employee is unable to work (or telework) for one of the following six (6) reasons:
- The employee is subject to a quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to quarantine due to COVID-19;
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- The employee is caring for an individual subject to a quarantine or isolation order described in (1) above, or self-quarantine as described in (2) above;
- The employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
- The employee is experiencing any other substantially similar condition.
An employee qualifies for paid expanded family and medical leave if the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19.
Importantly, the FFCRA prohibits employers from requiring an employee to exhaust their accrued PTO or state/local paid sick leave prior to utilizing their new paid sick leave or paid expanded family and medical leave. Further, covered employers will receive a one hundred percent (100%) reimbursement for paid sick leave benefits paid out under the FFCRA in the form of an immediate dollar-for-dollar tax offset against payroll taxes. However, it is noted that, where a refund is owed, the IRS will send the refund as quickly as possible.
To discuss your legal options relating to or arising out of the New York State or Federal Paid Leave under the FFCRA, please contact HoganWillig Attorneys at Law at (716) 636-7600.
DISCLAIMER: This article has been published as a service to the general public, and, as such, is intended for general purposes only. The information contained within this article should not be considered and/or construed as legal advice. Each reader is advised to consult legal counsel to determine how the contents of this article may apply to their particular facts and circumstances.
For changing and up to date legal information, visit our COVID-19 Resource Center.