Last night, Governor Andrew Cuomo of New York signed a bill into law that provides statewide paid sick leave related to the COVID-19 pandemic to employees in order “to address the immediate need of employees affected by COVID-19 who are subject to mandatory or precautionary orders of quarantine or isolation” issued by New York state, the Department of Health, a local board of health, or any government entity authorized to issue such order due to COVID-19. This law is effective immediately. The legislation previously included a comprehensive statewide paid sick leave proposal unrelated to COVID-19, but that has been tabled for later.
Here’s what you should know.
- The law applies to public and private 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, a local board of health, or any governmental entity authorized to issue such order due to COVID-19 (a “Quarantine Order”).
- The employee protections differ based on the size of the employer (as of Jan. 1, 2020) and its net worth (from the prior tax year).
- Employers with 10 or fewer employees subject to a Quarantine Order shall provide employees with unpaid sick leave until the termination of any quarantine. During this time, the employee shall be eligible for paid family leave and disability benefits.
- Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million (in the previous tax year) must provide employees subject to a Quarantine Order with at least five days of paid sick leave and unpaid leave until the termination of any Quarantine Order. After five days of paid sick leave, the employee shall be eligible for Paid Family Leave and disability benefits (short-term disability) for the duration of any Quarantine Order.
- Employers with 100 or more employees, as well as all public employers (regardless of number of employees), must provide at least 14 days of paid sick leave and guarantee job protection for the duration of the Quarantine Order
- The law also contains an anti-retaliation provision. Upon return to work following leave taken under this law, employees must be restored to their prior position under the same pay and terms and conditions of employment and cannot be discriminated or retaliated against for taking leave under the law.
- The New York Commissioner of Labor has the authority to adopt regulations and issue guidance on this new law, which may include standards for the use, payment and employee eligibility of sick leave. There is no guidance yet.
- A Quarantine Order is proof of disability or need to take family leave.
- Employers do not have to provide paid sick leave benefits to employees who are subject to a Quarantine Order because they have returned to the U.S. after travel to a country for which the CDC has a level 2 or level 3 travel health notice and the travel wasn’t part of the employee’s employment or at the direction of the employer, and if the employee was provided notice of the travel health notice and the limitations of this section of the law prior to such travel. Such employees can use their accrued leave provided by the employer. If none is available, they should be provided with unpaid sick leave for the duration of the Quarantine Order.
- Importantly, the law does not apply in cases where an employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a Quarantine Order, whether through remote access or other similar means.
- Disability and family leave benefits may be payable concurrently upon the first full day of an unpaid period of a Quarantine Order, but an employee may not collect any benefits that would exceed $840.70 in paid family leave and $2,043.92 in disability benefits/week.
- The maximum weekly benefit that an employee can receive for benefits due pursuant to disability is the difference between the maximum weekly family leave benefit and the employee’s total average weekly wage from each covered employer, up to a maximum benefit due pursuant to disability of $2,043.92 per week.
- Disability benefits will be payable on the employee’s first day of disability, despite any other rules to the contrary.
- In the event the federal Families First Response to Coronavirus Act provides greater benefits for an employee related to COVID-19, then the employee cannot get the state law benefits unless the state law provides for greater benefits. In that case, the employee can claim sick leave and employee benefits in an amount that is the difference between the state law benefits and the federal law benefits.We will provide additional updates on this law as additional guidance is issued. In the meantime, our New York employment team is available to answer any questions you may have regarding this new law.