ATTENTION: NEW YORK EMPLOYERS
New York Guarantees Sick Pay for Employees Quarantined as a Result of COVID-19
Effective immediately, all employers in New York State are required to offer paid or unpaid leave (depending on their size) and job protection to employees who are quarantined as a result of the COVID-19 pandemic, and pursuant to a “mandatory or precautionary order of quarantine or isolation” issued by certain governmental entities. As recently announced by Governor Cuomo’s office on March 17, 2020, the Governor’s signing of the new law guarantees “job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus.”
Covered Employees and Exceptions
The 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 governmental entity duly authorized to issue such order due to COVID-19.”
Employees who are asymptomatic or have not yet been diagnosed with any medical condition and are physically able to work remotely during the quarantine or isolation order are exempt from this law.
Additionally, leave benefits are not available to an employee who is quarantined or isolated because the employee returned to the United States from non-work travel to a country cited by the CDC as a “level two or three travel health notice,” if the individual received the CDC’s notice and was informed of this exception prior to travelling. Those employees must be allowed to use their other “accrued leave” or, if they do not have any available for use, must be provided unpaid leave for the duration of the quarantine or isolation.
Amount of Leave Time
The amount of paid and/or unpaid leave time required to be provided to employees varies based on the following:
- Employers with 10 or fewer employees as of January 1, 2020: must provide unpaid sick leave until the termination of the quarantine or isolation order. Employees on unpaid leave may be eligible for New York Paid Family Leave and disability benefits.
- Employers with 10 or fewer employees as of January 1, 2020 with a net income of greater than $1 million in the previous tax year: must provide at least 5 days of paid sick leave, plus unpaid leave until the termination of the quarantine or isolation order. After the 5 paid days, the employee may be eligible for New York Paid Family Leave and disability benefits.
- Employers with between 11-99 employees as of January 1, 2020: must provide at least 5 days of paid sick leave, plus unpaid leave until the termination of the quarantine or isolation order. After the 5 paid days, the employee may be eligible for New York Paid Family Leave and disability benefits.
- Employers with 100+ employees as of January 1, 2020: must provide at least 14 days of paid sick leave for the period of the quarantine or isolation order.
Importantly, any leave provided under this law must be provided in addition to any paid sick leave offered to employees under company policy or as required by local ordinances (such as those in New York City and Westchester).
Additionally, the new law amends the definition of “family leave” contained in the New York Paid Family Leave to include: “(a) any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine as defined above or (b) to provide care for a minor dependent child of the employee who is subjected to the same type of quarantine.” As described above, employees in certain situations will be eligible to receive New York Paid Family Leave and disability benefits after the leave provided under this law is exhausted, to cover the remaining period imposed by the quarantine or isolation order. In those instances, Paid Family Leave and disability benefits would run concurrently and provide a covered employee a weekly maximum of $840.70 in family leave benefits and $2,043.95 in disability benefits. The typical seven-day waiting period to collect disability benefits has been eliminated for these purposes.
Job Protection and Anti-Retaliation
Employees seeking or using leave as provided by the new law must be restored to their position – not a comparable or similar one – at the same pay and other terms and conditions of employment. The bill does not address layoffs or position eliminations caused by COVID-19 related financial hardship.
Employers are also prohibited from discharging, threatening, penalizing or otherwise discriminating or retaliating against any employee because he or she has taken leave under this law.
New York State Law Interaction with new Federal Law
The New York law expressly states that it is not meant to provide workers additional benefits to those being provided by the new federal Family First Coronavirus Response Act. Rather, New York State benefits will not be available to workers who are eligible for federal benefits, unless the State’s benefits are greater. In that case, the employee will receive the difference between the two.
The Commissioner of Labor was authorized to issue emergency regulations and other guidance to assist employers with implementing and adhering to this new law. NFC will continue monitoring those developments and will provide additional guidance as it becomes available.
The text of the new law can be viewed here.
The Nukk-Freeman and Cerra COVID-19 Task Force is closely monitoring the rapidly changing legal landscape relating to the COVID-19 global pandemic. Please feel free to reach out to your NFC attorney or reach out to a member of our team.