UPDATE: This Alert has been updated to include guidance on what businesses will be considered "essential" and exempt under Governor Cuomo's Executive Order mandating a 75 percent reduction in workforce. See the section below under the heading "New York Executive Order Requiring Businesses to Drop to 25% Workforce."

ORIGINAL POST

In the evening hours of Wednesday, March 18, both the federal government and the New York State government signed into law major legislation granting employees’ job-protected, paid leave from work as the country responds to the COVID-19 pandemic.

Additionally, late Wednesday night, New York State Governor Andrew Cuomo issued Executive Order No. 202.6 directing all but “essential” businesses and not-for-profit entities to reduce their in-person workforce at any work locations by 50 percent, effective Friday, March 20, at 8 p.m. On Thursday morning, Governor Cuomo announced he would be issuing a new Executive Order increasing that percentage to 75 percent.

We now have more details of each law and the Executive Order. 

New York State Emergency Paid Sick Leave Act

The New York State Paid Sick Leave Act creates two leave programs:

1. a new “paid sick leave” program for quarantined employees, and
2. an expansion of existing N.Y. Paid Family Leave (PFL) and Disability Benefit Leave (DBL, or commonly called “short-term disability” leave) for quarantined employees.

The Act took effect upon Gov. Cuomo’s signing on March 18.

Act Applies Only to Employees Ordered to Quarantine

Critically, the Act only applies to employees who have been ordered to quarantine or isolate by New York State, the Department of Health, a local health board, or another government entity authorized to issue a quarantine or isolation order. This means that the Act does not cover employees who have voluntarily chosen to quarantine or self-isolate.

Additionally, the Act will not apply to quarantined employees who are asymptomatic and able to perform their job functions remotely.

New Paid Sick Leave

All employers are covered by the Act, but the amount of leave an employee is entitled to depends on the employer’s size.

The paid sick leave is to be paid by the company itself.

As stated, the sick leave is “job protected,” meaning that employees who take sick leave due to a quarantine order will be entitled to the restoration of their job. Similarly, employees may not be discriminated against or retaliated against for taking sick leave.

The sick leave provided by the Act must be provided “without loss” to employees who already have employer-provided accrued “sick leave” time.

Expansion of New York PFL and Disability Leave

The Act also expands New York’s Paid Family Leave Law (PFL) and Disability Benefit Law (disability) to cover employees subject to a quarantine order.

Employees will be able to take PFL if they are subject to a quarantine order, or, if their minor child is subject to a quarantine order. This constitutes an expansion of PFL as employees may now use PFL for their own “condition,” whereas previously, employees could not use PFL for their own health conditions. Importantly however, the PFL expansion is still limited to employees subject to an official quarantine.

Employees will also be able to utilize disability leave if quarantined. Disability leave will be available where an employee cannot perform the regular duties of their employment as a result of a quarantine order, and, they have exhausted their paid sick leave. The Act also waives the traditional 7-day waiting period before an employee may apply for disability benefits.

Under usual circumstances, employees are required to submit proof of their need for either PFL or disability leave. The Act relaxes this rule, stating that a quarantine order issued by an appropriate governmental agency will constitute sufficient proof of the need for disability or need for Paid Family Leave.

Federal Coronavirus Response Act

As detailed in our previous Legal Alert, the Federal government has also enacted its own measures to respond to the coronavirus pandemic. The Federal bill contains two major employee leave changes: (1) it expands the existing Family & Medical Leave Act (FMLA) to cover leaves due to the closure of an employee’s child’s school, and (2) it creates an Emergency Federal Paid Sick Leave Act.

President Trump signed the Act on Thursday, March 18. The employee leave portions of the Act detailed below are expected to take effect as of Thursday, April 2.

Expansion of FMLA for Childcare-Related Reasons

Businesses with less than 500 employees and all public employers will be covered by the FMLA’s coronavirus-related reason for leave.

Under the amended FMLA, an employee may take FMLA leave if their child’s school has closed due to the pandemic. The first 10 days of leave under the FMLA will be unpaid, but, employees may elect to use their accrued vacation and/or PTO leave during this time.

After the first 10 days of leave, employees would be entitled to two-thirds of their usual weekly rate of pay. Pay would be capped at $200 per day, and $10,000 in total.

Like the existing FMLA, employees taking leave under the FMLA due to the closure of their child’s school will be entitled to job restoration at the conclusion of the leave.

Federal Paid Sick Leave

The Federal Act creates an Emergency Federal Paid Sick Leave for employee leave due to the pandemic. Like the FMLA amendment, the Federal Paid Sick Leave Act will cover employers with fewer than 500 employees as well as all public employers.

Under the Federal Paid Sick Leave Act, employers will be required to provide “Paid Sick Time” for employees who cannot work or telework because they:

• are subject to a Federal, State, or local quarantine or isolation order
• have been advised by a health care provider to self-quarantine
• are experiencing symptoms of COVID-19 and need to seek a medical diagnosis
• are caring for an individual who is either subject to a quarantine order or has been advised by a health care provider to self-quarantine
• are caring for a child whose school or place of care has closed
• are experiencing “any other substantially similar condition” to be determined by the Department of Health and Human Services (HHS), the Treasury Department, or the U.S. Department of Labor (USDOL).

Full-time employees will be entitled to 80 hours of leave, while part-time employees will be entitled to paid time equivalent to the average number of hours that they work in a 2-week period. Employees taking leave who are subject to a quarantine order or have been advised by a health care provider to self-quarantine will be entitled to their regular rate of pay. Employees who take leave to care for a family member in quarantine or self-isolation, or care for a child whose school has closed, will be entitled to two-thirds their usual rate of pay.

Employees cannot be required to use their existing accrued paid leave (such as PTO, vacation, etc.) before the employee uses their Federal Paid Sick Leave time.

New York Executive Order Requiring Businesses to Drop to 25% Workforce

In the late hours of Wednesday, March 18, Governor Cuomo signed his highly-awaited Executive Order requiring all New York State businesses and non-profit organizations to reduce their in-person workforce to 50 percent. In a press conference earlier this morning (Thursday, March 19), the Governor increased that restriction by mandating employers to drop their in-person workforce to 25 percent. The Order further requires that employers utilize telework and work-from-home practices to the “maximum extent possible.”

The Order requires employers to comply with the directive by Friday, March 20, at 8 p.m.

Certain businesses providing “essential” functions will be exempt from the Order.

Certain businesses providing “essential” functions will be exempt from the Order.

Late Thursday evening, the New York Empire State Development Corporation ("ESDC") published guidance further detailing which businesses will be considered essential and exempt from the mandatory reduction in force. Essential businesses are broken down by industry. (The full list is available on the ESDC website.)

Businesses may submit a request to the Empire State Development Corporation to determine whether they are essential.

“Essential businesses,” broken down by industry, include:

Health care entities
• Hospitals and research labs
• Nursing homes and elder care
• Doctors' and dentists' offices

Essential infrastructure
• Telecommunications and data centers
• Airports/airlines
• Transportation infrastructure, including busses, trains, and "for-hire" vehicles.

Essential manufacturing
• Food processing
• Chemicals
• Pharmaceuticals
• Sanitary products
• Agriculture/farm
• Paper products

Essential retail
• Grocery stores, including all food and beverage stores
• Pharmacies
• Convenience stores
• Gas stations
• Restaurants and bars, for take-out and delivery only
• Hardware and building stores

Essential services
• Trash disposal
• Mail and shipping
• Laundromats/dry cleaning
• Building cleaning
• Child care
• Auto repair

Financial institutions
• Banks
• Insurance
• Payroll
• Accounting

Entities providing basic necessities to the economically disadvantaged
• Homeless shelters
• Food banks

Construction
• Skilled trades such as electricians and plumbers
• Other construction firms necessary for essential infrastructure or emergency repair

Defense
• Companies providing national defense and security-related services

Essential services to maintain safety and sanitation of residences and businesses
• Law enforcement
• Fire prevention and response
• Security
• Cleaners or janitors
• Automotive repair

Essential logistics, technology support, and child care services
• Child care programs
• Essential government services
• Logistics and technology support