COVID-19 Response: The Latest Development for New York Employers - New Sick Leave Law & State Executive Orders
New York, N.Y. (March 27, 2020)
The New York Sick Leave Law Addressing COVID-19 Isolation and Quarantine-Related Absences from Work
On March 18, 2020, New York Governor Andrew Cuomo signed a new law to provide New York State employees job-protected leave and benefits during precautionary or mandatory quarantine or isolation due to COVID-19. The full text of the law is available here.
Unlike the recently passed federal laws providing for COVID-19 related leave, which we reported on previously, the quarantine-related leave provisions of the statute are effective immediately. Accordingly, employers must be pro-active in gearing up for compliance through revisions to their policies and practices.
Who Is Covered?
Effective immediately, any employee who is subject to a mandatory or precautionary State, Department of Health, local board of health, or other government entity order of quarantine or isolation due to COVID-19 is entitled to certain job-protected leave and other benefits, as well as protection from retaliation and discrimination. Employees who are able to work (including from home) and who are being paid are not entitled to either leave or benefits. To be clear, the law does not protect employees who elect to self-isolate absent a mandatory or precautionary order from the government, and does not apply when an employer voluntarily pauses its operations. It also does not protect employees who are quarantined due to recent voluntary travel to a country with a level two or three health notice from the CDC.
What Benefits Are Available?
The size of the employer determines the employee benefits available. The specific provisions are as follows:
- Employers with 10 or fewer employees and a net income of $1,000,000 or less must provide eligible employees with unpaid job-protected sick leave until the termination of any mandatory or precautionary order of quarantine or isolation due to COVID-19, and the employees may be eligible to receive wages through a combination of Paid Family Leave and disability benefits up to a maximum of $2,884.62 per week;
- Employers with 10 or fewer employees and a net income of more than $1,000,000 must provide eligible employees with at least five days of paid job-protected sick leave and unpaid job-protected sick leave during the remainder of the quarantine or isolation; according to the FAQ, after the five days employees may be eligible for compensation for the remainder of the quarantine by applying for Paid Family Leave and disability benefits up to a maximum of $2,884.62 per week;
- Employers with between 11 and 99 employees must provide eligible employees with at least five days of paid job-protected sick leave and unpaid job-protected sick leave during the remainder of the quarantine or isolation, and the employees may thereafter be entitled to Paid Family Leave and disability benefits; and
- Employers with 100 or more employees (and public employers) must provide eligible employees with at least 14 days of paid job-protected sick leave during the quarantine or isolation, to be paid at the employee’s regular rate of pay.
Employees may also have certain rights after the paid leave period ends. Specifically, the State Paid Family Leave and disability insurance programs may provide partial wage replacement for the period the employee remains in quarantine or isolation.
The FAQs issued by the DOL clarify that employees who work a fixed schedule or who are paid a slary should continue to receive their regular pay for the applicable period, whereas hourly, part-time, commissioned salespeople and others not paid a fixed wage should be compensated based on an average daily pay rate which is determined by the employer’s review of the compensation paid during a representative time period. Employers should pay part-time employees for the number of days or amount of time during the five or 14-day period that they would have otherwise received but for the suspension of the employer’s operations. The frequency of pay requirements applicable under Labor Law Section 191 continue to apply. Accordingly, manual laborers should still be paid weekly.
There is no waiting period for benefits. The leave is available retroactively, which means that employees may take quarantine leave if currently under a mandatory quarantine or isolation order, even if it was issued before the enactment of this statute. Note that employers may not require employees to use existing sick leave accruals or paid time off accruals for a COVID-19 quarantine order.
According to the FAQ, if the school of an employee’s child is closed due to a quarantine order, the employee may be eligible for paid family leave, but that may not be the case if the school closes for preventative social distancing and employer policies would come into play in that scenario.
See the FAQs published by the State.
How the New Law Alters Pertinent Definitions
Under this statute, “disability” is now defined to mean any inability of an employee to perform his or her regular duties or duties the employer may offer as a result of a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19, and when the employee has exhausted all paid sick leave provided by the employee's employer under this act.
“Family leave” is defined to include leave taken due to a mandatory or precautionary order of quarantine or isolation of the employee or the employee's minor dependent child issued by the state, the department of health, a local board of health, or any authorized government entity
What Happens After Leave Is Over?
The statute provides that, upon return to work following leave, employers must restore the employee to the position held prior to the leave. It is unlawful to retaliate or discriminate against any employee because the employee has taken leave.
What Happens If An Employer Fails to Pay the Benefits?
Complaints can be filed with the New York State Department of Labor in the event of employer non-compliance.
How Do the New Federal and New York Leave Laws Work Together?
It is important to note that the recently-enacted federal law requires that small and mid-sized employers offer 80 hours of paid sick leave to their employees under many of the same circumstances. The New York statute provides that, in cases where sick leave or disability benefits are available under both state and federal law, the employee will receive benefits under federal law. However, if New York provides sick leave and/or employee benefits in excess of the benefits provided by the federal government, then the employee will be able to claim the additional sick leave and/or employee benefits.
It appears that employees of public entities or entities with more than 100 employees, but fewer than 500 employees, will be entitled to 80 hours of paid sick time available under the federal law. Additionally, assuming an applicable quarantine or isolation order prevents the employee from working, the employee would be entitled to at least four additional days of paid sick time. These paid leave entitlements should run concurrently.
Limited guidance is furnished by the FAQ published by the State.
Are Workers Entitled to Leave Now?
It appears that the current State directives shutting down most business operations (addressed below) do not qualify as a predicate for leave entitlement as there is no quarantine order at present.
However, New York City employers should note that they may have different obligations in respect of granting paid sick leave. The New York City Earned Sick and Safe Time Act provides for leave due to the “closure of such employee's place of business by order of a public official due to a public health emergency or such employee's need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.”
New York State’s Executive Order Closing Most Places of Business
Governor Andrew Cuomo has issued a series of executive orders that have drastically restricted the numbers and types of businesses that can continue to operate from their offices, the latest of which was issued on March 20, 2020.
Under Executive Order 202.8, New York State employers must reduce their in-office workforces by 100% no later than March 22 at 8:00 p.m., other than the following categories of entities providing essential services and functions is set forth:
- essential health care operations, including research and laboratory services;
- essential infrastructure, including utilities, telecommunication, airports, and transportation infrastructure;
- essential manufacturing, including food processing and pharmaceuticals;
- essential retail, including grocery stores and pharmacies;
- essential services, including trash collection, mail, and shipping services;
- news media;
- banks and related financial institutions;
- providers of basic necessities to economically disadvantaged populations;
- vendors of essential services necessary to maintain the safety, sanitation, and essential operations of residences or other essential businesses; and
- vendors that provide other essential services or products.
Per Executive Order 202.6, guidelines are supplied to assist in the determination of which businesses are essential. Employers should note the following guidance:
With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the restrictions.
See also the State’s FAQ.
Any business that violates the Executive Order concerning the non-essential business closures could be held liable for civil penalties of up to $2,000 for every violation which may be increased to up to $5,000 for a subsequent violation where the business committed the same violation within 12 months of the initial violation, and potentially increased to as much as $10,000 if the violation results in serious physical harm to an individual.
The State has established a procedure for obtaining a designation of an essential business for businesses not listed as essential. Requests can be made to the Empire State Development Corporation for designation as an Essential Business through this website.
The Waiting Period for Filing for Unemployment Benefits Is Suspended
Finally, under recently issued Executive Order no. 202.5, the seven day waiting period to apply for unemployment insurance benefits, under subdivision 7 of section 590 and subdivision 2 of section 607 of the Labor Law, are waived for claims for unemployment insurance that arise due to closure of an employer for a reason related to COVID-19 or due to a mandatory order of a government entity duly authorized to issue such order to close such employer, as of March 12, 2020.
Lewis Brisbois has formed a COVID-19 Attorney Response Team to help your business with the myriad legal issues arising from the outbreak. Visit our COVID-19 Response Resource Center to find an attorney in your area.
Peter T. Shapiro, Partner
Meryl Mills, Partner
Michael D. Thompson, Partner
- COVID-19 Response Resource Center
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