In addition to Alina Nadir, this post was authored with input from Paul Keneally and Jennifer Shoemaker.
New York State Leave Law
New York has enacted a Paid Sick Leave law guaranteeing job protection and providing paid sick leave to employees for mandatory or precautionary orders of quarantine or isolation.
The law took effect immediately on March 18, 2020, and the amount of paid sick leave depends on employer size and yearly net income:
Employers with 10 or fewer employees and net income of less than $1M: no paid sick days, just access to Paid Family Leave (PFL) and short-term disability (DBL) benefits including wage replacement up to $150,000
Employers with 11-99 employees and net income of $1M or greater: 5 paid sick days and PFL and DBL as described above
Employers with 100 or more employees: 14 paid sick days.
The job protection lasts for the duration of the quarantine or isolation.
Employers must provide notice to employees of the availability of this leave. New York State is expected to provide an example of a notice form for employers’ use. Employers must also provide employees with any PFL and DBL forms necessary for employees to apply for these benefits where applicable.
Closures for social distancing purposes do not qualify as mandatory or precautionary order of quarantine or isolation. For example, a school closure that was put in effect to effectuate social distancing does not qualify a person for paid leave under this law.
Since the law’s passage last week, there has been confusion regarding what exactly qualifies as a “mandatory or precautionary order of quarantine or isolation” as well as whether the 14 paid sick days applicable to employers of 100 or more meant 14 business days or calendar days. It was also unclear whether the new Matilda’s Law, which instructs individuals in vulnerable populations constitutes an order of quarantine or isolation, would qualify as a order of quarantine or isolation.
With further clarification now available, Matilda’s Law does not constitute such an order, and therefore, an employee is not eligible for the NYS paid sick leave due to being in a vulnerable population.
Employers of 100 or more whose employees are entitled to 14 days of paid sick leave if under an order of quarantine or isolation must pay such an employee wages equivalent to whatever the employee would have made in a 14-day period. In other words, the employer is not required to provide wages equal to 14 business days but rather wages equal to a 14-day period of time.
These benefits are not available to any employee who is deemed asymptomatic or not diagnosed with a medical condition and is physically able to work through remote access or other methods. This leave is not available to employees who are returning from personal travel to a destination on the CDC travel advisory list.
For employers with 99 or less employees, if a person is ordered to be quarantined or isolated beyond the time available under this new law, the employee can apply for concurrent PFL and DBL. The waiting period for DBL is waived under these circumstances. PFL and DBL benefits may also be used for when an employee’s dependent minor child is under a mandatory quarantine or isolation order.
Families First Coronavirus Response Act
On Monday, we described a Bill in the House of Representatives that was quickly drafted to provide relief to Americans as the country deals with the COVID-19 pandemic. Last night, President Trump signed the Families First Coronavirus Response Act into law. The new law is an emergency aid package that will provide paid sick and family leave for many Americans. It also provides for free coronavirus testing, adds to existing unemployment insurance, as well as providing additional Medicaid funding and food assistance.
This law goes into effect in 15 days.
The law does not apply to employers with more than 500 employees. There is also a possible exemption for a business with fewer than 50 employees if the Department of Labor determines that requiring the business to provide paid leave would “jeopardize the viability of the business as a going concern.”
FMLA Expansion
An expanded Family and Medical Leave Act will provide up to twelve weeks of FMLA leave and ten of those weeks can be paid leave. Importantly, this benefit is only available for employees who must care for a son or daughter under 18 years old because the child’s school or day care has closed due to the public health emergency. This benefit is capped at $200 a day and a total of $10,000 in the aggregate. Importantly, the first ten days of this leave function as a waiting period. After the leave has passed ten days, the employee is entitled to two-thirds of his or her regular rate of pay. During the 10-day waiting period, the employee may choose to use available paid time off (PTO), vacation or sick time.
Traditionally, FMLA leave has only been available to employees who have been employed for 12 months. This expansion is applicable to any employee who has worked for the employer for at least 30 days.
The standard FMLA that employers have always administered still applies to employees who have a serious health condition or have to care for a family member with a serious health condition, but it remains unpaid time.
Employers with less than 50 employees may be unfamiliar with the requirement to hold an employee’s job during an FMLA protected leave, however, the law does provide some flexibility on job restoration for employers with fewer than 25 employees. The paid family leave provisions will expire on December 31, 2020.
Paid Sick Leave
The new law also requires emergency sick leave for employees who meet one of the following conditions:
The employee is subject to a federal, state or local quarantine or isolation order;
The employee has been advised by a health care provider to self-quarantine;
The employee is experiencing COVID-19 symptoms and is seeking a diagnosis;
The employee is caring for an individual who is subject to a quarantine order or has been advised to self-quarantine;
The employee is caring for his or her son or daughter if the school or child care facility is closed or the care provider is unavailable due to COVID-19 precautions; or
The employee is experiencing any other substantially similar condition as specified by the Department of Health and Human Services in consultation with the Department of the Treasury and the Department of Labor.
The Benefits available to the employee include:
Two weeks of paid sick leave at the employee’s regular pay rate to either quarantine or seek a COVID-19 diagnosis for the employee (Situations 1-3 described above).
If the employee qualifies for full pay, the benefit is capped at $511 per day or $5,110 in the aggregate.
Two weeks of paid sick leave at two-thirds of employee’s regular pay rate if the employee is caring for a family member with a COVID-19 diagnosis or to care for a child whose school or daycare has closed due to COVID-19 concerns (Situations 4-6 described above).
If the employee qualifies for two-thirds pay, the benefit is capped at $200 per day or $2,000 in the aggregate.
For a full-time employee, he or she should receive an allotment of 80 hours. For part-time employees, the allotment should be equal to the number of hours an employee works on average over a two-week period.
Employers cannot force employees who qualify for the paid sick leave to use their existing vacation or sick time before receiving the benefit.
The emergency sick time provided for by this law does not carry over from one year to the next. There is no accrual of this emergency sick time, and it is not paid out at the time of an employee’s termination, resignation or retirement.
An employer who fails to comply with these provisions will be in violation of the Fair Labor Standards Act.
Employees who need to take this leave shall provide their employer with as much notice as is practicable.
Notice Requirement
Within 7 days, the federal Department of Labor will provide a model notice that employers will have to post to inform employees about the available leave. Employers will likely have to also ensure that employees who are not currently in the workplace due to COVID-19 restrictions are notified of these benefits.
Workplaces with Multi-Employer Bargaining Units
An employer who has signed onto a multi-employer CBA may fulfill its obligations under this new law by making contributions to a multiemployer fund, plan or program if the practice is consistent with the employer’s bargaining obligations and the applicable CBA. The contributions would be based on each employees’ entitlement of paid sick time under these new provisions so long as the fund, plan or program enables the employees to be paid from that source based on hours worked under the CBA for the uses specified in the Act.
Tax Credits for Employers
There is a separate payroll tax provision for employers who pay paid leave under the expanded paid FMLA, allowing a 100% credit against the employers’ share of the payroll tax for each employee who requires the leave, limited to $200 per day ($10,000 total).
These credits are refundable if they exceed the amount the employer owes in payroll tax.
The law includes tax credits for employers who are required to pay sick leave or family leave pursuant to the provisions described above.
The paid sick leave payroll tax credit can be claimed on a quarterly basis, equal to 100% of the amount the employer has paid. The credit is subject to the same limits as described above: $511 per day, ($5,110 total) for an employee who requires the time off to care for themselves and $200 per day ($2,000 total) for an employee who requires the time to care for another or a child whose school has closed.
Additional Provisions
In addition to employment-related provisions, the new law provides the following:
$500 million in additional funding for the Women, Infants and Children (WIC) nutrition program
$400 million in additional funding for the Emergency Food Assistance Program
$82 million in additional funding for the Defense Health Program
$250 million in additional funding for food programs, including home delivery food programs, for the elderly and disabled
Waivers to some requirements for school lunch programs
Waivers to work requirements to be eligible for SNAP food programs
Extensions to, and additional funds for, unemployment benefits
Free COVID-19 testing without co-pays or deductibles
As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.
You can view more COVID-19-related posts in our COVID-19 Resource Area here.