Not to be upstaged by the President, and just as the Senate was voting on the Families First Coronavirus Response Act of 2020 (“FFRCA”), New York State Governor Andrew Cuomo signed into law paid sick leave legislation to mandate paid sick leave and provide job protection for ALL New York employees, including those who are quarantined or ordered to self-isolate as a result of COVID-19.
There are two major distinctions between the FFCRA and the New York Sick Leave Law:
- The NY law applies to ALL employers, not just those with under 500 employees.
- The NY paid sick leave law for employees with COVID-19 issues is effective immediately. The amendments to New York Labor Law mandating state-wide paid sick leave go into effect in 180 days. This article focuses on the COVID-19 portion of the law.
The new NY COVID-19 sick leave law provides unpaid or paid sick leave, and expands an employee’s eligibility for Paid Family Leave (“PFL”) or short-term disability benefits, for employees who are “subject to mandatory or precautionary orders of quarantine or isolation” due to COVID-19.
Amount of Sick Leave: To create more confusion, the amount of leave varies depending on an employer’s net income and an employer’s size.
The law specifically provides:
- Employers with 10 or fewer employees (measured as of January 1, 2020) and a net income of less than $1,000,000 must provide:
Unpaid sick leave for the entire period of quarantine or isolation and employees will be eligible for PFL and short-term disability benefits.
- Employers with 11-99 employees and employers with 10 or fewer employees (measured as of January 1, 2020) and a net income greater than $1,000,000 million must provide:
5 days of paid sick leave and then unpaid sick leave for the remainder of the quarantine or isolation period. Once employees have exhausted paid sick leave, they will be eligible for PFL and short-term disability benefits.
- Employers with 100 or more employees (measured as of January 1, 2020) and public employers (regardless of size), must provide:
At least 14 days of paid sick leave during any order of quarantine or isolation. (This generally tracks the FFCRA, but is applicable to ALL employers, not just those with less than 500 employees, and provides four more extra days of leave)
- This paid leave is in addition to any paid sick leave an employee has accrued under an employer policy, with limited exception to employees who engage in non-business travel to CDC level 2 and level 3 countries.
Job Protections: The most significant entitlement in addition to paid sick leave is job protection, as employees must be restored to the same position with the same pay upon their return to work. During these increasingly challenging economic times, and with furloughs and layoffs looming, employers should be cognizant of the job-protected aspect of this leave.
Exceptions: This legislation also contains an exception for private employers who have voluntarily closed business operations for COVID-19 safety-related concerns. Thus, if an employee is out because the store they work in chose to close, and then get the virus, they do not get the paid sick leave.
Exclusions: An employee who is “deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while” under a quarantine or isolation order is not entitled to sick, PFL or disability benefits under the COVID-19 provisions of the law.
Real-World Implications Of This New Law
While a seemingly positive step, this legislation is not as expansive as it could have been, which is a blessing for employers.
The exception for employers who have voluntarily closed business operations could be quite large, as many small employers have decided it is cheaper to close their doors, when they have so little business.
Further, what constitutes “mandatory or precautionary orders of quarantine or isolation” is unclear, as the definition section of the law merely repeats that exact phrase without providing any additional guidance. As a result, the types of orders in which the law covers is equally unclear. For example, it is unclear whether Governor Cuomo’s March 19, 2020 Executive Order and March 20, 2020 announcements implementing mandatory work from home measures for non-essential businesses would apply. The law provides the Department of Labor with the authority to issue guidance on this point-which we are following closely and is needed at this time.
In addition, and evident from the name of the legislation, sick leave is not available for any employee who is asymptomatic (i.e., who is well) or who has not yet been diagnosed with any medical condition and is physically able to work remotely or through other means while under a mandatory quarantine or isolation. Thus, unlike the federal FFCRA, which we have written about here, this leave does not apply to employees who need to care for sick family members (although New York Paid Family Leave would likely apply) or who have children whose school has closed.
The new NY law also deals with any overlap with the benefits provided under the FFCRA. It provides that any leave provided under the New York law is NOT in addition to any FFCRA leave.
Accordingly, to the extent there is any overlap, employees will only be entitled to benefits under New York law that are in excess to the leave provided under the FFCRA.
With all of these laws coming at a fast and furious pace, it is a challenge for employers to keep track of every new mandate. We encourage employers to actively stay current by subscribing to our blog and COVID-19 Resources Center for the most up-to-date development news and analysis. We also encourage employers to consult with Kelley Drye before making any employment decisions.