On March 18, 2020, Governor Cuomo of New York signed into law a statewide quarantine leave bill related to the COVID-19 pandemic (the “New York law”). The New York law went into effect immediately on March 18 and provides paid leave, unpaid leave, and expands New York’s paid family leave and disability benefits to employees who are subject to a “mandatory or precautionary order of quarantine or isolation.” On the same date, President Trump signed into law the federal Families First Coronavirus Response Act (“FFCRA”). We have been counseling clients around the country regarding a variety of employment issues related to COVID-19 and provide this article as a useful tool for our clients with employees in New York in particular.
U.S. DEPARTMENT OF LABOR PUBLISHES FFCRA GUIDANCE
As a preliminary matter, we note that the U.S. Department of Labor (“DOL”) confirmed in its regulatory guidance issued yesterday, March 24, that FFCRA leave and benefits will go into effect on April 1, 2020. We will provide a more detailed discussion of the DOL’s guidance in a separate alert, but briefly note here that it answers several, but not all, previously open questions. One potential ambiguity that may remain unresolved is whether shelter in place (“SIP”) or stay at home (“SAH”) orders that have now been implemented by the governors of a growing list of states, including but not limited to, California and New York, constitute a “quarantine or isolation order related to COVID-19” for purposes of the FFCRA. The March 24 DOL guidance does not address this question. But the DOL is expected to be publishing further guidance as we get closer to the April 1 FFCRA effective date, so this is certainly an issue about which employers should work closely with legal counsel before making decisions.
INTERPLAY OF THE FFCRA AND THE NEW YORK LAW
We provide further details about the New York law and its interplay with the FFCRA below.
Overview
The benefits available to employees under the New York law differ depending on the size and/or net income of the employer. The FFCRA applies to employers with fewer than 500 employees, but the DOL can exempt employers with fewer than 50 employees if providing paid leave would jeopardize the viability of the business. The New York law expressly provides that an employee covered under both the New York law and any federal law or regulation related to COVID-19 is entitled to the difference between the benefits under the New York law and the benefits available, if any, under the federal law or regulation.
Eligible Employees
The New York law applies to employees who are “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.”
Similar to the FFCRA open issue noted above, the New York law is vague on what constitutes a “mandatory or precautionary order of quarantine or isolation.” But guidance from the New York State Department of Health arguably suggests that mandatory or precautionary quarantine or isolation applies to persons who have tested positive for COVID-19, been in close contact with or have had proximate exposure to someone who has tested positive, or traveled to China, Iran, Japan, South Korea, or Italy while COVID-19 was prevalent. If that were the case, Governor Cuomo’s recent Executive Order 202.8, which requires all non-essential businesses and non-profit entities in New York to fully reduce their in-person workforce at any work location, would not fit within the meaning of “mandatory or precautionary order of quarantine or isolation” under the new law. We may expect further guidance from the New York State Department of Labor Commissioner on this topic.
The New York law contains carve-outs for certain employees:
- It does not apply to any employee who is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work, including telework, while under a mandatory or precautionary order of quarantine or isolation.
- An employee shall not receive paid sick leave benefits or other paid benefits provided by the New York law if the employee is subject to a mandatory or precautionary order of quarantine after non-work, voluntary travel to a high-risk country as determined by the Centers for Disease Control and Prevention and if the employee was provided notice of the travel health warning and this carve-out. Such employee is entitled to use accrued leave provided by the employer, or to the extent that the employee does not have accrued leave or sufficient accrued leave, unpaid sick leave for the duration of the quarantine or isolation order.
Unlike the FFCRA, the New York law does not provide paid sick leave to employees who are unable to work because they are experiencing symptoms of COVID-19 and seeking a medical diagnosis or even have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, among other reasons.
Covered Employers
The chart below details the amount of paid sick leave available to an eligible employee based on the size and/or net income of the employer. Of significance is that unlike the FFCRA, the New York law applies to employers with 500 or more employees. Under the New York law, the number of employees is measured as of January 1, 2020, and the net income refers to the previous tax year.
Eligible employees do not receive both the paid sick leave available under the New York law and the paid sick leave available under the FFCRA. If the New York law provides them with greater benefits, they are entitled to the difference between the benefits under the New York law and the benefits available under the FFCRA.
The New York law is silent on how each day of paid sick leave pay should be calculated and whether part-time employees are entitled to the same amount of paid sick leave as full-time employees. We may also expect to see further guidance from the New York State Department of Labor Commissioner on these topics, as the new law authorizes the Labor Commissioner to issue guidance and regulations, including “standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”
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Employer Size
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New York Law
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FFCRA
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500 or more employees
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14 days of paid sick leave to each eligible employee
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Not applicable
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100 or more employees but fewer than 500 employees
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14 days of paid sick leave to each eligible employee
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Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period
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Between 50 employees and 99 employees
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Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order
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Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period
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Between 11 and 49 employees
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Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order
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Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period
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10 or less employees and a net income of greater than $1 million
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Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order
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Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period
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10 or less employees and a net income of $1 million or less
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Unpaid leave until the termination of the quarantine or isolation order
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Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period
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Existing Sick Leave Benefits
The New York law provides that “[s]uch leave shall be provided without loss of an officer or employee’s accrued sick leave.” It is unclear whether “accrued sick leave” refers to existing mandatory sick leave, such as mandatory sick leave for employees in New York City and Westchester County, and/or to existing employer policies. The FFCRA is clearer on the topic; the FFCRA does not diminish the right and benefits of an employee under “other Federal, State, or local law,” “collective bargaining agreement,” or “existing employer policy.”
Anti-Retaliation and Job Restoration
The New York law provides that an employer shall not “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to this act.” The New York law also requires an employer to restore an employee who has returned to work following leave taken under the New York law to his or her “position of employment held by the employee prior to any leave taken pursuant to this act with the same pay and other terms and conditions of employment.”
The paid sick leave portion of the FFCRA provides that it is unlawful for an employer “to discharge, discipline, or in any other manner discriminate against an employee” who takes leave under the FFCRA and “has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.” The FFCRA is silent on the topic of job restoration as to paid sick leave, but in its Family and Medical Leave Act (“FMLA”) expansion portion, it expressly exempts an employer with fewer than 25 employees from FMLA’s job restoration section if the employer meets certain conditions.
Paid Family Leave and Disability Benefits
The New York law expands paid family leave and disability benefits to employees of employers with fewer than 100 employees. It does not address whether these expanded benefits are available to employees of employers with 100 or more employees.
Whereas paid family leave benefits are available only to employees who need to take a leave due to family issues, the New York law expands the definition of “family leave” for eligible employees to include: any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19; or to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. The New York law also expands the definition of “disability” to include: any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation due to COVID-19; and when the employee has exhausted all paid sick leave provided by the employee’s employer under the new law.
Employees who meet both definitions are entitled to collect paid family leave and disability benefits concurrently, up to $840.70 in paid family leave and $2,043.92 in disability benefits per week.
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