By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
Although the COVID-19 pandemic officially concluded on May 11, 2023 when President Biden announced the end of the public health emergency, COVID-related illnesses and absences continue to impact the workplace. In light of the recent rise in COVID-19 cases, employers in New York and New Jersey should be aware of their continuing obligations to employees. Employers should be mindful that the benefits offered to employees under the laws outlined below are in addition to any other sick leave, paid time off, or benefits available under company policy. Furthermore, employers are reminded that the Americans with Disabilities Act or local laws prohibiting discrimination and retaliation and requiring reasonable accommodation may apply to COVID-related health conditions to the extent they meet the definition of a disability under those laws.
The following are answers to important questions New York and New Jersey employers may have as they continue to address COVID-19-related absences in the workplace.
1. Are employers still required to provide job-protected leave to workers who have COVID-19?
New York: Yes, employers of all sizes must provide leave but whether and how much leave must be paid depends on employee headcount.
Employer obligations under New York State’s COVID-19 Paid Leave Law remain in effect with no specified end date. The law, signed by then-Governor Cuomo in March 2020, requires employers to provide job-protected paid leave to workers who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. Paid leave is not available under this law for employees who are not experiencing symptoms and are able to work from home during the order.
The amount of leave to which an employee is entitled and whether the leave must be paid depends on whether the employer is a public or private entity and the size of the business as of January 1, 2020:
- Businesses with 100 or more employees, and all public employers, must provide employees with at least 14 days of paid leave for the period of the order of quarantine or isolation. [As a practical matter, employees may not be entitled to the full 14 days based on current guidance on the length of quarantine or isolation as further explained below.]
- Businesses with 1-10 employees and a net annual income greater than $1 million in the previous year or 11-99 employees must provide employees with at least 5 days of paid leave plus unpaid leave for the duration of the order of quarantine or isolation.
- Businesses with 10 or fewer employees with a net annual income of $1 million or less in the previous year must provide employees with unpaid sick leave for the duration of the order of quarantine or isolation.
Pursuant to guidance from the New York State Department of Labor, employees may take up to three periods of leave under the law. Employees who are taking leave for the second and third periods must submit documentation from a “licensed medical provider or testing facility” confirming a positive COVID-19 test result; at-home tests are not sufficient to establish eligibility after the first period of leave.
Notably, COVID-19 Paid Leave incorporates quarantine guidance from the Centers for Disease Control and Prevention (“CDC”) as adopted by the New York State Department of Health. Current CDC guidance no longer requires precautionary quarantine and recommends a period of isolation or quarantine of five days for actual or suspected COVID-19 infection. Since paid leave only is required for the duration of the order, employees likely would be entitled to a maximum of five days of COVID-19 Paid Leave, regardless of employer size. For additional information regarding New York’s COVID-19 Paid Leave Law, please see our prior eAlert available HERE.
Additionally, eligible employees who are experiencing symptoms or illness due to COVID-19 may use accrued sick leave under the New York Paid Sick Leave Law (“NYPSLL”), regardless of the employee’s quarantine status. Under the NYPSLL, employees may use accrued leave for the diagnosis, care, or treatment of an illness, injury, or health condition of the employee or the employee’s family member for whom they are providing care. Leave must be accrued at a rate of not less than one hour for every 30 hours worked; alternatively, employers may provide the full amount of sick leave to which the employee is entitled at the beginning of each calendar year. Employers may require the leave to be used in increments of four hours or less, during which time, employees must be paid the greater of their normal rate of pay or the applicable minimum wage rate. The amount of leave to which an employee is entitled and whether the leave must be paid depends on the size of the employer:
- Employers with 100 or more employees must provide up to 56 hours of paid sick leave per calendar year.
- Employers with 5 to 99 employees or 4 or fewer employees and net income of greater than $1 million in the previous tax year must provide up to 40 hours of paid sick leave per calendar year.
- Employers with 4 or fewer employees and net income of $1 million or less in the previous tax year are required to provide up to 40 hours of unpaid sick leave per calendar year.
For additional information regarding the New York Paid Sick Leave Law, please see our prior eAlert available HERE.
If an employee only is entitled to unpaid leave or still is unable to work after exhausting COVID-19 Paid Leave and accrued paid leave under the NYPSLL, the employee may apply for leave benefits under New York’s Paid Family Leave Program (“NYSPFL”) and the state disability program. For 2024, the maximum weekly benefit under the NYSPFL will increase from $1,131.08 to $1,151.16.
New York City employees also may be entitled to additional leave under NYC’s Earned Safe and Sick Time Act (“ESSTA”), which has similar but not identical provisions to the NYPSLL. An employer is not required to provide more than 40 or 56 hours of leave, as applicable under the New York State law, but must provide the more generous provisions to the extent the ESSTA offers broader coverage or greater benefits than the NYPSLL. The amount of leave to which an employee is entitled and whether the leave must be paid is identical to the NYPSLL noted above, except that the threshold for smaller employers is a net income of “$1 million or more” rather than “more than $1 million”.
ESSTA regulations were recently amended with changes effective October 15, 2023. The amended regulations clarify several issues, including that, for purposes of calculating employer size to determine coverage, employee headcount is based on the number of employees nationwide. In addition, the regulations provide that employers located outside of New York City must provide ESSTA leave to employees who work in New York City; however, employers do not have to provide ESSTA leave to remote workers whose primary location is outside of New York City unless they regularly perform, or are expected to regularly perform, work in New York City.
Under the amended regulations, employer procedures that require notice from employees of their need to take ESSTA leave must be “reasonable” when the need is not foreseeable. Additionally, employers who require written documentation to support an employee’s need to take leave must have a written policy, to include the types of documentation accepted and the procedure by which an employee can submit their documentation. Employers must provide at least seven days for employees to submit their documents and, further, must reimburse employees for any reasonable expenses incurred to obtain the documentation. Employers also are required to notify employees on their pay statements of their leave accrual, usage, and balance.
New Jersey: Yes, employers of all sizes must provide employees with up to 40 hours of earned sick leave per year.
Although there are no COVID-19-specific leave laws currently in effect in New Jersey, all New Jersey employers (except public employers required to provide paid sick leave under another law) must provide full-time, part-time, and temporary employees with up to 40 hours of paid leave per year to care for themselves or a loved one under the state’s Earned Sick Leave Law (“NJESL”). Employees accrue one hour of earned sick leave for every 30 hours worked, up to a maximum of 40 hours of leave per benefit year. Employees must be paid at their regular rate of pay or the state minimum wage, whichever is greater. For additional information regarding New Jersey’s Earned Sick Leave Law, please see our prior eAlert available HERE.
New Jersey employees also may be eligible for Temporary Disability Insurance benefits from the state for time off that exceeds employer-provided paid leave.
2. Must employers provide job-protected leave to workers whose child is quarantined or has COVID-19?
New York: Yes, an employee who cannot work due to their child’s illness or quarantine may be eligible for leave.
Although COVID-19 Paid Leave is only available for the employee’s own order of quarantine or isolation, New York employees who need to take leave to care for a child who is under an order of quarantine or isolation may be eligible for leave under the NYSPFL. This leave is not applicable where the employee is able to work remotely. In cases where the employee is needed to provide care for their sick child, they also may be eligible to use accrued leave under NYPSLL.
Additionally, New York City employees may take ESSTA leave to care for their child with COVID-19 or whose school or childcare provider is closed due to a public health emergency.
New Jersey: Yes, employees may take NJESL leave to care for the health needs of their child.
New Jersey employees may use accrued leave under NJESL to care for the health needs of their child. Additionally, employees may use NJESL leave for mandatory remote learning, a school or childcare closure for cleaning, or other coronavirus preparation.
3. Are employees entitled to job-protected leave when a family member has COVID-19?
New York: Yes, an employee who cannot work in order to care for a family member with COVID-19 may be eligible for leave.
Although COVID-19 Paid Leave only is available for the employee’s own order of quarantine or isolation, employees who need to take leave to care for a family member with COVID-19 may be eligible for leave under the NYPSLL or NYSPFL.
New York City employees also may be eligible to take ESSTA leave for the care and treatment of a family member.
New Jersey: Yes, employees may take NJESL leave to care for the health needs of family members.
Under the NJESL, employees may take leave to care for the health needs of family members. In addition to family members, employees also may take NJESL leave to care for the health needs of individuals who have a close association with the employee that is equivalent to a family relationship. As for their own illness, New Jersey employees caring for an ill family member also may be eligible for Temporary Disability Insurance benefits from the state during unpaid leave time. In addition, an employee caring for a family member with COVID-19 or symptoms of the virus may be eligible for job-protected leave under the New Jersey Family Leave Act and wage-replacement benefits through the state’s New Jersey Family Leave Insurance program.
4. Are employers required to provide time off for employees to get vaccinated?
New York: Yes, employees of private employers are entitled to paid time off to receive COVID vaccinations and boosters.
Employees of private employers in New York currently are entitled to paid time off to receive COVID-19 vaccinations and boosters under a law that is scheduled to expire December 31, 2023. Employers must provide each employee with a “sufficient period of time, not to exceed four hours per vaccine injection” to be paid at the employee’s regular rate of pay. This leave is only available for the employee’s own vaccination or booster. Employers may require notice and proof of vaccination from the employee. Employees also may use leave under the NYSPFL or NYPSLL for recovery of any side effects from the vaccination. Prior New York City law offering four hours of paid time for vaccination of employees’ children expired December 31, 2022.
New Jersey: Yes, employees may use NJESL leave to receive COVID-19 vaccinations. Employees may use NJESL leave for COVID-19 vaccinations, including time taken for travel to and from a vaccine appointment and to recover from side effects. Employees also may use leave under NJESL for COVID-19 testing.
If you have any questions relating to this eAlert or need guidance to ensure compliance with COVID-19-related or other state leave laws, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.