Coronavirus – Paid Sick Leave – Emergency Legislation for New York Employers and Employees

Please note this memo was published on March 23, 2020, and guidance may have changed by the time you read this. We will endeavor to post updates as we receive them.

In addition to the Families First Coronavirus Response Act (FFCRA) passed last week by the US government, individual states have started enacting a range of legislation applicable to employers and employees. Effective immediately, New York’s Emergency COVID-19 Paid Sick Leave Law (“PSLL”) was passed on March 18, 2020. Herewith, Rooney Nimmo associate Abbey Docherty addresses this new law and provides employers and employees with an overview of the key points.

What Does the Emergency COVID-19 Paid Sick Leave Law Provide?

In its mission to support and address the immediate needs of employees affected by COVID-19 who are subject to mandatory or precautionary orders of quarantine or isolation, the PSLL provides a number of key measures, including the following:

  1. Employers with ten or fewer employees (as of January 1, 2020) and a net income of less than $1m in the previous tax year are required to provide eligible employees with the following:
  • Job protection and unpaid leave for the duration of the employee’s quarantine order; and
  • Guaranteed access to Paid Family Leave and short-term disability benefits for the period of quarantine, including wage replacement for their salaries up to $150,000.
  1. Employers with (i) ten or fewer employees (as of January 1, 2020) and a net income greater than $1m in the previous tax year or (ii) between 11 and 99 employees as of January 1, 2020, are required to provide eligible employees with the following:
  • A minimum of five days of paid sick leave at their regular rate of pay;
  • Job protection for the duration of the employee’s quarantine order; and
  • Guaranteed access to Paid Family Leave and short-term disability benefits for the period of quarantine, including wage replacement for their salaries up to $150,000.
  1. Employers with 100 or more employees, as well as all public employers (regardless of their number of employees) are required to provide employees with the following:
  • A minimum of fourteen days of paid sick leave at their regular rate of pay;
  • Job protection for the duration of the employee’s quarantine order; and
  • Guaranteed access to Paid Family Leave and short-term disability benefits for the period of quarantine, including wage replacement for their salaries up to $150,000.

Employees who work for an employer that falls within the first category above may be eligible to receive their weekly wages through a combination of their employer’s Paid Family Leave and disability benefits, up to a maximum of $2,884.62 per week. Following the use of paid sick days under PSLL, this rule also applies to employees who work for employers within the second and third categories above.

What is “Job Protection”?

For all employers, “job protection” means that the employee returning from such leave must, in general, be returned to the same position, pay, and terms and conditions of employment which were in place prior to such leave. Employers must grant paid leave to quarantined employees without any loss of an employee’s accrued sick leave benefits. It is unclear at this time whether “accrued sick leave” under PSLL refers only to benefits mandated by law, or also to the sick leave benefits provided under an employer’s specific policy. We will endeavor to provide updates as and when they are available.

Employers are explicitly prohibited from discriminating or retaliating in any way against an employee who takes advantage of the benefits provided by the PSSL.

Who is Eligible for Paid Sick Leave under PSLL?

The provisions of PSLL apply to any employee who is subject to mandatory or precautionary orders of quarantine or isolation due to COVID-19, also referred to as a “qualifying quarantine.” A qualifying quarantine under PSLL must be a mandatory or precautionary quarantine order issued by a government agency, such as the Department of Health, local boards of health, or any other government entity authorized to issue such orders.

Exceptions to Paid Quarantine Leave

The benefits of PSSL are not available to:

  • Employees under voluntary self-quarantine;
  • Asymptomatic employees under quarantine who are physically able to work from home; and
  • Employees who are under qualified quarantine due to voluntary travel to high-risk countries, as defined by the Centers for Disease Control and Prevention, provided that (a) such travel was not employment-related or at the direction of the employer, and (b) the employee was provided with notice of the travel health notice and limitations contained in PSSL prior to traveling.

Ineligible employees are, however, entitled to unpaid sick leave and use of accrued benefits during the period of quarantine or isolation.

Additionally, paid sick leave requirements under PSSL do not currently apply to private employers that voluntarily shut down business operations due to COVID-19-related health and safety concerns. This may change in the coming days pursuant to New York’s “Stay at Home” Order.

New York Paid Family Leave and Disability Benefits

For the period of an employee’s qualified quarantine, the COVID-19 Paid Sick Leave Law also expands entitlement to New York State Paid Family Leave (PFL) and benefits under Disability Benefits Law (DBL).

Prior to the enactment of PSLL, existing PFL laws require all private employers in the State of New York to provide paid family leave benefits to eligible employees for the purpose of caring for family members. Comparatively, the existing Disability Benefits Law only requires employers to provide DBL benefits to employees for the purpose of the employee’s own illness. PSSL expands upon existing PFL laws and DBL benefits, providing further benefits to employees under a qualified quarantine.

Who is Eligible for Additional PFL and DBL Benefits?

  1. Employers with fewer than 100 employees:

At first glance, the expansion of PFL and DBL benefits are applicable only to employees of private employers with fewer than one hundred employees. The legislation does not account for employers with more than one hundred employees. We will endeavor to provide updates on this point as and when they are available.

  1. Eligible employees:

Additional PFL and DBL benefits available pursuant to PSSL may be used by employees if either they or their minor dependent child, are subject to mandatory or precautionary orders of quarantine or isolation due to COVID-19 as detailed above. PSSL amends the New York Workers’ Compensation Law to further define “disability” as “any inability of the employee to perform their job duties or any other duties offered by their employer due to a mandatory or precautionary order of quarantine or isolation […] due to COVID-19.”

Eligible employees are entitled to both PFL and additional DBL benefits for the duration of a qualified quarantine (i) on their first day of quarantine if they are not otherwise entitled to PSSL (i.e. employees of employers with fewer than ten employees and a net income of less than $1m), or (ii) immediately after the period of paid sick leave provided by PSSL, as applicable.

Disability benefits and PFL benefits may run concurrently with unpaid sick leave under PSSL up to 100% of their average weekly wages for employees who earn up to $150,000 per year, with the exception that an employee may not collect benefits that would exceed $840.70 in PFL and $2,043.92 in disability benefits per week.

PSSL and Federal Legislation

New York’s Emergency COVID-19 Paid Sick Leave Law is intended to coordinate with federal leave benefits. Leave under PSSL is not provided in addition to the federal Families First Coronavirus Response Act (FFCRA). Employees eligible for FFCRA leave will be entitled only to the difference—if any—between the federal benefits and the benefits that employees would have received under PSSL.

As it stands, the FFCRA does not apply to employers with more than five hundred employees. As such, the PSSL will automatically apply to all employers with more than five hundred employees unless further federal law is enacted to account for these employers.

Please contact Abbey Docherty or your usual contact at our firm if you have any concerns or if any of the above situations apply to you and you would like to discuss your options.

This Article Is One Of A Series Intended To De-Mystify Common Legal Issues For The Non-Lawyer And Entrepreneur Audience – They Are Designed To Foster Discussion And Is By No Means Exhaustive. These Materials Are For Informational Purposes Only. Nothing Herein Is Intended Nor Should Be Regarded As Legal Advice. The Distribution Of This Article To Any Person Does Not Establish An Attorney-Client Relationship With Our Firm. Rooney Nimmo Assumes No Liability In Connection With The Use Of This Publication. This Bulletin Is Considered Attorney Advertising Under The Applicable Rules Of New York State. Rooney Nimmo UK Is Regulated By The Law Society Of Scotland And Rooney Nimmo US By The New York Rules Of Professional Conduct. All Attorneys And Solicitors Listed In This Firm Stipulate Their Jurisdictional Limitations. Rooney Nimmo In The USA Is A Law Firm Registered As A New York State Professional Corporation.

 

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