Employee Protection During the COVID Crisis
New York’s COVID-19 Sick Leave Law
In order to assure employees are fully protected during the COVID crisis, on March 18, 2020, New York adopted new legislation that provides New York employees with paid sick leave in response to the COVID-19 outbreak. This law applies equally to all employers with any employees located in New York State. Importantly, an employee is eligible for paid time off if they present to their employer a “mandatory or precautionary order of quarantine or isolation.” Such an order (a “COVID-19 Order”) is one 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.” In this regard, the New York State Department of Health has issued guidance to confirm that only those employees who have been exposed to COVID-19 in some fashion, or traveled to a high-risk area, will be allowed leave under the law.
An employee will receive a COVID-19 Order if their health care provider notifies the infection control personnel at New York State or a local health department that the employee is a “Patient Under Investigation” for COVID-19. This may be due to the employee’s own condition or that of a member of the employee’s household. The local health department then issues an order of quarantine after receiving this notification. Importantly, if an employee has received only a quarantine or isolation recommendation from their own health care provider, but not a quarantine or isolation order from the health department, this leave is not available. Other options may apply, however.
Leave benefits available to the employee depend on the size and net income of their employer. For example, businesses with 11-99 employees as of 1/1/2020 that had a net annual income greater than $1 million last year must provide employees with job protection for the duration of the order of quarantine or isolation and at least five (5) days of paid sick leave. See table, below, for further details.
|Employer Size (nationally) as of January 1, 2020||Leave Entitlement|
|10 or fewer employees and a net income of less than or equal to $1 million||Unpaid job protection for the duration of a mandatory or precautionary order of quarantine or isolation|
|10 or fewer employees and a net income greater than $1 million
Employers with 11 to 99 employees irrespective of net income
|At least 5 calendar days of paid sick leave (with the rest unpaid) and job protection for the duration of a mandatory or precautionary order of quarantine or isolation|
|Employers with 100 or more employees irrespective of income
All public employers (regardless of number of employees)
|At least 14 calendar days of paid sick leave (with the rest unpaid) and job protection for the duration of a mandatory or precautionary order of quarantine or isolation|
Employers must provide this leave in addition to any other accrued leave (e.g., New York City Earned Sick and Safe Time Act or Westchester County Earned Sick and Safe Time). Although the COVID-19 Sick Leave Law does not contain a specific notice requirement itself, the state has issued guidance advising that employers let their employees know “that these benefits are available to them, should they, or their minor dependent child, be subject to a mandatory or precautionary order of quarantine or isolation.” The employee is entitled to job-protected leave for the full duration of the COVID-19 Order. Once the employee has exhausted the paid Leave Entitlement provided by their employer, they may also be eligible for leave benefits in accordance with the New York Paid Family Leave Benefits Law (PFLBL) if the employee either remains subject to a COVID-19 Order or needs to provide care for a minor dependent child who is subject to a COVID-19 Order. Additionally, an employee whose health has been impacted by COVID-19 may be eligible for disability benefits administered by the State of New York. Furthermore, employees who are caring for a family member suffering from a serious health condition, including being afflicted by COVID-19, may also be eligible for PFLBL under the “Family Care” provision.3
To apply for these benefits, the employee must submit to the employer’s insurance carrier (1) the COVID specific application (Request for COVID-19 Quarantine DB/PFL – Self (Forms PFL-1 & SCOVID19) or Request for COVID-19 Quarantine PFL – Child (Forms PFL-1 & CCOVID19) and (2) the COVID-19 Order. Each Request includes two forms, which have sections to be completed by the employee and the employer. Specifically, the employer must (1) provide the employee’s average weekly wage (averaged from the eight weeks prior to the start of Paid Family Leave), and (2) must attest that the employee has used any quarantine paid sick time and is not able to work remotely. The employer must complete and return their forms to the employee within three business days.
The employee is responsible for submitting their completed Request directly to the employer’s Paid Family Leave/Disability Leave insurance carrier within 30 days of their first day of NYPFL leave. The insurance carrier must pay or deny the employee’s request within 18 calendar days of receiving the completed request.
Exceptions to the Law
An employee is not eligible for the leave benefit if the employee is both (1) still physically able to work while under a mandatory or precautionary quarantine or isolation order, through “remote access or similar means”; and (2) either deemed asymptomatic, or not yet diagnosed with any medical condition. The leave is only available during a period when the employee is not able to work.
Additionally, employees are not eligible for the leave benefit if: (1) they returned from traveling to a country for which the Center for Disease Control and Prevention has issued a level 2 or 3 travel health notice; (2) that travel was taken for personal reasons and not at the direction of the employer; and (3) the employee was provided notice of the travel health notice and notice of the limitations contained in the new law prior to travel. This exception does not impact an employee’s right to take accrued leave provided by their employer, or unpaid leave for the duration of the order of mandatory or precautionary quarantine or isolation.
Importantly, this New York COVID-19 sick leave is not available to the employee if leave is available under federal law as described below. In other words, the employee receives the benefit of whichever law is more generous to the employee, but not both. However, given that the federal law does not apply to employers with more than 500 employees in the U.S., New York law will automatically apply to these employers. Therefore, employers who are operating in New York and have more than 500 employees should plan to provide at least 14 days of paid sick leave and guaranteed job protection for the duration of an official COVID-19 Order.
Interplay with Federal Law – Families First Coronavirus Response Act (FFCRA): Employee Paid Leave Rights
The FFCRA applies to employers with 499 or fewer employees. It went into effect on April 1, 2020. Employers should count the number of employees at the time the employee asks for leave to assess whether the employer meets the 500-employee threshold. Employers should include all employees on its payroll including part-time, temporary, seasonal employees and employees on a leave status. Note that employees on furlough are not entitled to FFCRA benefits, but should be included when assessing employee count. Independent contractors should not be included in the employee count.
There are two main components of this federal law:
- First, the Emergency Family Medical Leave Expansion Act amends the federal Family and Medical Leave Act (FMLA). It provides up to 12 weeks of job-protected leave to an employee if the employee is unable to work (or telework) due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency. Employees are eligible for the leave after only 30 days of employment with the employer.
The first 10 days of the employee’s 12 weeks of leave are unpaid and the remainder, if it is needed, must be paid at two-thirds of the employee’s pay with a cap of $200 per day and $10,000 in the aggregate.
- Second, the Emergency Paid Sick Leave Act provides two weeks (or 80 hours) of leave if one of the below requirements is met.11 This leave is available on the employee’s first day of employment and the employer may not ask the employee to take other forms of paid time off prior to utilizing this emergency leave.
Circumstances that trigger this emergency paid leave:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health care provider to self-quarantine because of COVID-19;
- the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- the employee is caring for an individual subject or advised to quarantine or isolation;
- the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
- the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
The law limits this paid leave to $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) noted above (generally, an employee’s own illness or quarantine); and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) (care for others or school closures).
Lastly, all covered employers must post the Mandatory Notice in their workplace explaining FFCRA leave rights. Where the physical workplace is closed due to executive order or other restrictions, the Department of Labor recommends posting this notice on an intranet or by email to employees.
The Van De Water Law Firm offers free consultations to navigate these new laws for your business or if you are an employee who has been terminated after requesting medical leave. You can reach us at 631-923-1314 or on the web at Chrisvandewater.com and fill out our questionnaire. God Bless and stay safe.