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Federal and State COVID-19 Sick Leave Obligations for New York Employers

March 25, 2020, Covington Alert

In light of the federal Families First Coronavirus Response Act ("FFCRA") and New York State’s sick leave law, both of which were signed on March 18, 2020, many New York employers will need to be prepared to comply with their new federal and state sick leave obligations to employees impacted by COVID-19.

As discussed in a prior client alert, the FFCRA requires covered employers to provide paid sick leave and emergency family and medical leave to certain employees, while New York State’s new law mandates employers to provide sick leave to employees who are subject to a quarantine or isolation order due to COVID-19. Both laws afford affected employees with certain temporary job protections.

Importantly, private employers with 500 or more employees are not covered by the FFCRA but are still subject to New York’s sick leave law if they employ New York workers. Generally, such employers must provide 14 days of paid sick leave under the state law for a quarantine or isolation order due to COVID-19. In contrast, private New York employers with fewer than 500 employees are subject to both the federal and state laws.

In recognition of COVID-19’s destructive impact on New York workers and businesses, the state law also expands New York’s Paid Family Leave and statutory disability benefits to provide salary continuation to certain qualifying employees who are in quarantine or isolation. New York’s unemployment insurance benefits have also been amended to account for the evolving employment landscape. Additional information on New York’s sick leave law can be found on the state’s resource page for employers, which will likely be updated on a continuing basis.

Interplay Between Key Provisions of FFCRA and NYS Sick Leave Law

 

Topic

FFCRA Sick Leave Act

NYS Sick Leave Law

Effective Date

April 1 through December 31, 2020

March 18, 2020

Employers Covered

Private employers with fewer than 500 employees and public sector employers with at least 1 employee.

All New York State employers, except those that ceased operations for safety concerns due to COVID-19.

Employees Covered

Employees who are unable to work because the employee:

  • Is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • Has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
  • Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • Is caring for an individual who is subject to an isolation or quarantine order or because the individual has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
  • Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  • Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
 

Employees subject to a “mandatory or precautionary order of quarantine or isolation” issued by the “state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.”

Employees are not covered if they:

  • Are asymptomatic or have not been medically diagnosed and who are able to work remotely; or
  • Traveled for non-business reasons to a country for which the Centers for Disease Control and Prevention issued a Level 2 or 3 health notice, despite being notified of the health notice prior to travel.

Amount of Leave Required

10 days of paid leave (80 hours) for full-time employees; pro-rated amount of paid leave for part-time employees.

 

(This does not include leave provided under the FFCRA’s Emergency Family and Medical Leave Act.)

10 or fewer employees as of January 1, 2020 and not more than $1 million net income: Unpaid sick leave until the end of the quarantine or isolation order.

10 or fewer employees with a net income of greater than $1 million OR between 11 and 99 employees as of January 1, 2020:

5 days of paid sick leave and unpaid leave until the end of the quarantine or isolation order.

 

100 or more employees as of January 1, 2020: 14 days of paid sick leave during the quarantine or isolation order.

Interaction with Employer’s Leave Policy

Sick leave benefits under an existing employer-provided policy are not diminished.

Sick leave must be provided in addition to any other employer-provided sick leave, including any leave required by the New York City or Westchester paid sick leave laws.

Interaction with Other Sick Leave Laws

State or local sick leave laws are not preempted.

If New York provides benefits in excess of the federal benefits, then the employee may receive the federal leave benefits plus the New York leave benefits in an amount equal to the difference between the state and federal benefits.

 

As noted in the above chart, the FFCRA does not preempt existing state or local sick leave laws, and the New York sick leave law provides that the state sick leave benefits would be unavailable if any federal sick leave benefits also applied—unless the employee is entitled to greater benefits under the state law than under the federal law. In such cases, qualifying employees may receive both the FFCRA benefits and the difference in benefits between the FFCRA and the New York sick leave law.

Also, employees who take sick leave under the New York state law must be restored to the position they held prior to taking leave, with the same pay and other terms and conditions of employment. The new law does not address situations in which the employee’s prior position no longer exists when the employee returns to work following quarantine or isolation.

Paid Family Leave and Disability Benefits

In addition to providing sick leave, employers with fewer than 100 employees must allow employees to utilize New York Paid Family Leave (NYPFL) and short-term disability benefits for the remainder of the quarantine or isolation period, after any paid sick leave has been exhausted. NYPFL now covers an employee’s leave from work when the employee (1) is subject to a quarantine or isolation order or (2) needs to care for a dependent child of the employee who is subject to a quarantine or isolation order.

Likewise, disability coverage has been expanded to cover an employee’s inability to work due to a quarantine or isolation order. The definition of “disability” now includes the inability of an employee to perform the regular duties of his or her employment or duties offered by an employer as a result of a quarantine or isolation period, upon exhausting sick leave. Eligible employees who have exhausted all available paid sick leave under this law may file for disability benefits without being subject to the prior seven-day waiting period, which has been eliminated for COVID-19 purposes.

The NYPFL and disability benefits will run concurrently, such that an employee may recover a weekly maximum of $840.70 in NYPFL benefits and $2,043.95 in disability benefits. Note, however, that the new law does not expressly permit employees of larger employers (those with 100 or more employees) to use existing NYPFL or disability benefits.

Unemployment Insurance Benefits

Under the new law, New Yorkers who are out of work due to COVID-19 may file a claim for unemployment benefits immediately. The state has waived the seven-day waiting period for unemployment insurance benefits due to COVID-19-related closures or quarantines. Many New York employers have encouraged laid-off employees to seek unemployment insurance benefits until they are able to resume work.

Takeaways and Next Steps for Employers

  • Given that New York’s sick leave law went into effect immediately, New York employers should promptly consider taking the following measures:
  • Ensure an accurate employee headcount, which should include full-time and part-time employees as of January 1, 2020;
  • Assess any overlapping federal, state, or local sick leave requirements;
  • Inform eligible employees of the new sick leave law and how the law may interact with existing leave policies;
  • Track employees’ use of sick leave under the new law for accounting purposes;
  • Prepare business operations for potential fluctuations in staffing due to the steady increase in COVID-19 infections and the likelihood of employees using the new leave benefits;
  • Encourage qualifying employees to apply for NYPFL, disability, or unemployment insurance benefits; and
  • Monitor new legal developments and federal, state, and local government-issued guidance on employers’ obligations in light of the rapidly changing COVID-19 situation.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Employment or Employee Benefits practice.

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