New York Paid Leave for Quarantined Employees
Last updated March 26, 2020
While we are upon uncertain times, one thing is certain, New York employers of all sizes must immediately provide paid or unpaid leave and job protection to employees who are subject to a coronavirus (“coronavirus” or “COVID-19”) related mandatory or precautionary quarantine or isolation order with few exceptions. As a consequence of the coronavirus outbreak, states, such as New York, have passed emergency legislation imposing new requirements on employers.
On March 18, 2020, Governor Andrew Cuomo signed emergency legislation guaranteeing job protection and pay for most New Yorkers who have been quarantined as a result of the novel coronavirus. Both New York’s Paid Sick Leave Law (“NY PSLL”) and the federal Families First Coronavirus Response Act (“FFCRA”), require employers to provide eligible employees with up to two weeks of paid sick leave, in addition to other leave benefits. While the New York Law is effective immediately, the FFCRA is not effective until April 2, 2020. See our client alert regarding same here.
Employers must prepare to respond to employee questions regarding their rights to paid and unpaid leave benefits, since Governor Cuomo issued the "New York State on PAUSE" Executive Order requiring all New York employers with “non-essential businesses” to close and utilize telework programs to the extent possible, as of March 22, 2020 at 8 p.m. While Governor Cuomo’s PAUSE order does not explicitly state that it is a quarantine or isolation order, one could argue that it has the practical effect of placing New York employees under quarantine and/or isolation. Nonetheless, it is unclear whether Governor Cuomo intended for his PAUSE order to be a quarantine or isolation order inasmuch, since it does not contain the precise language in the NY PSLL, namely, whether it is a mandatory or precautionary quarantine or isolation order. For a full briefing of COVID-19 related Executive Orders’, click here. Therefore, New York employees may be eligible for paid sick leave under both New York’s Paid Sick Leave law and the FFCRA.
Under the NY PSLL, the amount of paid leave an employer must provide its employees is based on the employer’s size as of January 1, 2020, as follows:
New York employers with 10 or less employees must provide unpaid sick leave for the duration of their employees’ quarantine.
New York employers with 10 or less employees which have greater than $1 million in net income in the previous tax year must provide at least 5 days of paid sick leave and unpaid leave for the remainder of their employees’ coronavirus-related quarantine.
New York employers with 11 to 99 employees must provide quarantined employees with at least 5 days of paid sick leave and unpaid leave for the remainder of the quarantined order.
New York employers with 100 or more employees must provide its quarantined employees with at least 14 days of paid sick leave.
These quarantined employees also remain eligible for paid family leave, disability benefits, and any leave required under local ordinance (e.g., New York City and Westchester ordinances) or paid sick time provided under an employers’ policy. However, certain quarantined employees are exempt from receiving the benefits provided under NY PSLL, including quarantined employees who are physically able to telework and are asymptomatic or undiagnosed with any medical condition. Employees are also exempt if they are quarantined because they returned from personal travel to a country which the employer informed them was deemed by the Centers for Disease Control and Prevention as a Level 2 or 3 health concern prior to the employee’s trip. Exempt employees may instead use accrued, but unused leave provided by the employer to the extent such leave is available.
After exhausting leave provided under this law, certain quarantined employees will be eligible for New York Paid Family Leave and disability benefits to cover the remainder of time they are under a quarantine or isolation order. Those employees would be entitled to concurrent disability and paid family leave benefits, not to exceed $2,034.95 and $840.70, respectively. The standard seven-day waiting period is waived for the collection of disability benefits as well.
At the conclusion of any quarantine order, this law mandates that employees be restored to the same position held by the employee on the same terms and conditions prior to the commencement of their leave. Further, employers may not discharge, threaten, penalize, or in any way, discriminate or retaliate against employees who take leave under this law.
The NY PSLL law has a significant interplay with the new federal FFCRA. The NY PSLL is meant to supplement federal benefits provided under federal laws, including the FFCRA. Therefore, employees who would receive greater benefits under the FFCRA, would not be eligible for the benefits under the NY PSLL. However, when a quarantined employee’s New York state provided benefits would exceed the federal FFCRA benefits, they would be eligible for benefits equal to the difference between their FFCRA benefits and their NY PSLL benefits.
Employers must be aware of their new immediate obligations under this law (and the FFCRA) and prepare to answer employee questions regarding payment of the benefits set forth above. Fortunately, the Commissioner of Labor is expected to issue emergency guidance and regulations to ensure compliance with the law. New York employers should immediately contact their CSG counsel with any questions they may have regarding the new panoply of laws, regulations and executive orders, to ensure that they are in compliance.
Chiesa Shahinian & Giantomasi PC will continue to track this law and provide updates. If you have any questions about implementing policies relating to this law, COVID-19 and/or responding to employee concerns, please feel free to reach out to your CSG attorney or the authors listed here.
For additional information pertaining to the coronavirus outbreak, please visit CSG's COVID-19 Resource Center.
This publication contains general information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Attorney Advertising. Prior results do not guarantee a similar outcome.