As a follow up to NFC’s recent e-Alert titled “New York Guarantees Sick Pay for Employees Quarantined as a Result of COVID-19” , which is accessible HERE , the New York State Department of Labor (“NYDOL”) has issued frequently asked questions (FAQs) to help employers and employees better understand their obligations and rights under this new law. The full FAQs can be viewed HERE .
In addition, the NYDOL also issued updated FAQS for Unemployment Insurance Benefits, which discuss the recent unemployment enhancements under federal law. A full copy can be accessed HERE.
The following summarizes the highlights on the NY Sick Pay law:
- Which employees are eligible for paid sick leave (“COVID-19 quarantine leave”)?
- Employees are entitled to five days of paid COVID-19 quarantine leave if they work for either: (1) an employer that employed 10 or fewer employees in New York State as of January 1, 2020, but earned more than $1 million in net income in 2019; or (2) an employer that employed between 11-99 employees in New York State as of January 1, 2020.
- Employees are entitled to paid COVID-19 quarantine leave for the amount of money they would have earned over fourteen calendar days if they work for a company with 100 or more employees as of January 1, 2020.
- All other employers are only required to provide unpaid COVID-19 quarantine leave, and their employees are eligible to apply for paid family leave and disability benefits.
Importantly, employees are only eligible for paid or unpaid COVID-19 quarantine leave if they are “under an order of quarantine – either mandatory or precautionary.” The guidance makes clear that this “order” does not come from an employee’s private health care provider, but rather from the State of New York, the New York State Department of Health, a local Board of Health or any government entity authorized to issue such order.
- Does this new law apply to an employee who “self-quarantines”? No, not unless the employee is under a mandatory or precautionary order of quarantine issued by the State of New York, New York State Department of Health, a local Board of Health or any government entity authorized to issue such order.
- Can an employee whose child’s school or daycare is closed use COVID-19 quarantine leave?
No, but if the school or daycare is closed because of a quarantine order issued by one of the above governmental entities, the employee might be eligible for paid family leave benefits.
- Is an employee who is able to work remotely and is asymptomatic eligible for COVID-19 quarantine leave? No. Nor can the employee apply for paid family leave or disability benefits.
- What about employees who work for a business that temporarily or permanently closes? According to the guidance, these employees are not eligible for COVID-19 quarantine leave and should apply for unemployment benefits.
- How much should workers be paid while on leave? Where paid COVID-19 quarantine leave is required, employees must receive the amount that they otherwise would have received had they worked during the period on leave.
- What about part-time, project-based and commissioned workers? The guidance states that part-time, commissioned and other employees who are not paid a fixed wage should be paid based on “an average daily pay rate” for a “representative period of time” (the latter chosen by the employer).
- Is the fourteen-day period provided for in part of the law calculated as calendar days rather than work days? Yes, for employers who employed more than 100 full-time workers in New York as of January 2020. The NYDOL’s guidance clarifies that covered employers are not required to provide up to fourteen days of paid time off. Rather, the time periods provided for in the new law are calendar days, not work days. In other words, a covered employer is only required to pay the employee the “amount of money that the employee would have otherwise received” during the fourteen calendar day period.
- Is COVID-19 quarantine leave available retroactively? An employee who is currently under an order of quarantine or isolation can take COVID-19 quarantine leave even if that order was issued before the enactment of the law (March 18, 2020) and is still in effect. However, the guidance does not address whether leave must be provided for the time spent by an employee under an order of quarantine that expired before March 18, 2020.
- Can employees be required to use previously available PTO to cover the period of quarantine? No. However, COVID-19 quarantine leave must be provided in addition to employees’ other available PTO (vacation, sick and/or personal time off).
- How does an employee obtain an order of quarantine? Employees can obtain an order from their local health department either in electronic or paper format, which should be provided within 30 days. This guidance confirms that leave is only required for employees who have actually been issued a physical order of quarantine. However, the guidance states that an employee can apply for paid family leave benefits before receiving an order of quarantine. If a local health department is unable to immediately provide the order, the employee is permitted to submit the proper documentation from his or her (or his or her child’s) licensed health care provider attesting that the employee or the employee’s child qualify for the order to the employer’s paid family leave insurance carrier with the rest of the request forms (see above). The employee should then supply the carrier with a copy of the actual order once it is obtained.
Finally, the guidance also includes information on how eligible employees can apply for paid family leave and disability benefits. Instructions and the requisite forms can be found HERE .
If you have any questions relating to this eAlert, or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney you typically work with or call us directly.