On March 18, 2020, New York Gov. Andrew Cuomo enacted Senate Bill 9081 (the Act) providing immediate job-protected sick leave and assistance to New Yorkers impacted by COVID-19. Effective immediately, employers are now required to provide paid sick leave to any “employee who is 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 governmental entity duly authorized to issue such order to COVID-19.”
We expect the state of New York to release accompanying regulations and further guidance on implementation and further explaining specific provisions of the Act, such as how to count employees to determine the size of an employer and notice requirements.
This article provides a summary of what we know so far:
Which Employers are Covered?
The law applies to all employers and protections are based on employer size and net income stating that employers must provide the following until the termination of any mandatory or precautionary quarantine or isolation order due to COVID-19:
- Employers with 100 or more employees as of January 1, 2020 (and all public employers) must provide 14 days of paid sick leave;
- Employers with between 11 and 99 employees as of January 1, 2020, and a net income greater than $1 million, must provide 5 days of paid sick leave and provide access to New York Paid Family Leave (PFL) and short-term disability (TDI) benefits after 5 days of paid sick leave;
- Employers with 10 or fewer employees as of January 1, 2020, and a 2019 net income greater than $1 million, must provide 5 days of paid sick leave and provide access to PFL and TDI benefits after 5 days of paid sick leave.
- Employers with 10 or fewer employees, and a net income of less than $1 million, must provide their employees with access to PFL and TDI benefits, and must provide unpaid sick leave and any other benefit as provided by any other provision of law to an employee under quarantine, but they have no obligation to provide paid leave under this law.
Which Employees are Exempted?
The law outlines a number of exemptions from its paid sick leave requirements. An employee is not entitled to any job-protected paid sick leave under this law if the employee:
- Is asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory quarantine through remote access or other means;
- is subject to quarantine because the employee returned from non-business travel to the United States after traveling to a country for which the Center of Disease Control (CDC) has issued a level 2 or 3 health notice and the employee was provided notice of the CDC travel health notice and limitations of the law prior to travel.
It should be noted that employees in these situations may still be eligible for paid leave under the new federal law or under an employer’s existing leave policies. For more on the law, see our blog post.
Does the Law Require Job Restoration?
Employees returning from a leave covered by this law must be restored to the position they held prior to taking the leave with the same pay and other terms of employment.
How does the new law extend the definition of “disability” and “family leave”?
The law expands the scope of certain existing terms that appear in New York’s Workers Compensation law (NY WC law) and New York Paid Family Leave (NY PFL) to specifically cover employees impacted by COVID-19.
- For purposes of this bill only, the term “disability”—as used in NY WC law is defined as “any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation issued by the state” and when the employee has exhausted all paid sick leave provided by the employer pursuant to the Act.
- The definition of the term “family leave”, relevant under New York’s Paid Family Leave Law (NY PFL), will be defined as including “any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation issued by the state” or “to provide care for a minor dependent child of the employee who is subject” to such order.
Notably, the law provides that for the purposes of this Act only, the law allows an employee to receive benefits under NY PFL and short-term disability concurrently (something which has not previously been permitted). Thus, employees will be able to earn a weekly maximum of $840.70 in NY PFL benefits and $2,043.95 in disability benefits, and the seven-day waiting period to collect disability benefits for these purposes has been eliminated. Please visit our blog for additional information about the NY PFL program.
Does the new law outline any restrictions on employers?
The law prohibits employers from deducting an employee’s accrued sick leave and makes clear that sick leave required by this new law must be provided on top of any other sick leave already provided by an employer.
The law also prohibits discrimination or retaliation based on any employee’s taking of or requesting a leave.
How does this overlap with the Federal Families First Act or Local Sick Leave Laws?
The law provides that, to the extent any provisions overlap with any federal law, the federal law shall apply, provided that if the provisions of New York law provide benefits in excess of federal law then employees will be able to claim such additional sick leave or benefits in the amount of such difference. Similarly, employers would remain subject to local sick leave ordinances (such as those in New York City) that meet or exceed the requirements of the New York State quarantine leave law.
Given that this emergency legislation is immediately effective, New York employers should consider the following as soon as possible:
- Consider how the law supplements existing leave of absence, sick leave, and PTO policies;
- Communicate to employees about the availability of COVID-19 related quarantine/isolation leave;
- Become aware of overlapping statutory leave requirements that may apply;
- Document and account for sick leave entitlements from a financial perspective.
Please note that our compliance team continues to monitor this legislation (and any additional released guidance) closely and will update this article accordingly as we learn more.
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