NYS Requires Payment of COVID-19-Related Sick Leave by New York Employers
On March 18, 2020 New York Gov. Andrew Cuomo signed legislation guaranteeing job protection and pay for New Yorkers who have been quarantined because of COVID-19
The law does not prohibit any personnel action which otherwise would have been taken regardless of any request to use any leave under the act. (e.g., employment termination, layoff, furlough)
The state has released additional guidance and an FAQ clarifying aspects of the legislation, including interaction with federal/state disability benefits and the definition of quarantine/isolation orders
Employers must evaluate all leave requests to determine whether the New York Quarantine Law, the E-PSLA, and/or E-FMLEA are triggered
New York Gov. Andrew Cuomo announced on March 17, 2020, that he and the legislature had reached an agreement on a bill guaranteeing job protection and pay for New Yorkers who have been quarantined because of COVID-19. The final version of the bill was signed on March 18, 2020. The measure seeks to address concerns about lost wages for thousands of people in quarantine—with more to come—as part of the efforts to contain the coronavirus pandemic. The bill defines mandatory or precautionary order of quarantine or isolation to mean a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, or any government entity duly authorized to issue such order due to COVID-19.
New York State has since released guidance and a FAQs section regarding this legislation.
The law is effective immediately and applies retroactively to eligible employees. The amount of mandated employer paid leave depends on factors relating to the employer, as summarized here:
|New York Quarantine Leave Law During Quarantine/Isolation Period|
|Employers with 10 or fewer employees w/ 2019 net income less than $1,000,000||Unpaid sick days until termination of order|
|Employers w/ 11 to 99 employees||Five sick leave days followed by unpaid sick leave until termination of order|
|Employers with 10 or fewer employees w/ 2019 net income greater than $1,000,000||Five sick leave days followed by unpaid sick leave until termination of order|
|Employers with 100+ employees and Public sector employees||14 paid sick leave days|
This quarantine/isolation order leave cannot be charged against the employee’s accruals. The guidance has also clarified that the days are “calendar days,” not “working days.”
Public employer is defined broadly, and includes, but is not limited to, the state, county, city, town, village, school district, BOCES, any governmental entity operating a college or university, public improvement or special district including police or fire districts, public authority, or public benefit corporation.
Disability and Family Leave
Employees working for private sector employers with less than 100 employees may also be eligible for disability and family leave under New York State law, under expanded definitions of both leaves, after the employee exhausts the above-described quarantine/isolation leave.
Specifically, the law states, for this law only, that “disability” and “family leave” shall mean “an 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, the department of health, a local board of health, or any government agency authorized to issue such order due to COVID-19.”
Additionally, for the purposes of this law only, disability and family leave benefits may be payable concurrently, provided however, an employee may not collect benefit that would exceed $840.70 in paid family leave and $2,043.92 in benefits due to disability per week. Moreover, disability benefits payment pursuant to this law are payable on the first day of disability, without a waiting period.
Applications for applying for the disability and family leave portions of the law are available on the FAQs page.
Quarantine/Isolation Order Defined
The quarantine/isolation law is only triggered if an employee is subject to “a mandatory or precautionary order of quarantine or isolation due to COVID-19” that is “issued by the state of New York, the department of health, local board of health, or any government entity duly authorized.” The NYS guidance narrowly defines isolation/quarantine orders as follows:
- Mandatory Isolation: If you are subject to mandatory isolation, the attestation must say:
- You have tested positive for COVID-19; or
- Testing is not currently available for you, but you have COVID-19 symptoms and have had contact with a known COVID-19 case.
- Mandatory Quarantine: If you are subject to a mandatory quarantine, the attestation must say:
- You have been in close contact with someone who has tested positive for COVID-19 or who is currently in mandatory isolation; or
- You have COVID-19 symptoms and have returned within the past 14 days from a country designated with a level 2, 3, or 4 advisory for COVID-19.
- Precautionary Quarantine: If you are subject to a precautionary quarantine, the attestation must say:
- You are asymptomatic and have returned within the past 14 days from a country designated with a level 2, 3, or 4 advisory for COVID-19; or
- You have been determined to have had proximate exposure with someone who has tested positive for COVID-19 while that person was symptomatic.
Accordingly, an employee that chooses to self-quarantine would not seem to trigger the leave entitlement.
The law specifically indicates that leave is not available under the following circumstances:
- The employee is asymptomatic and is able to work remotely;
- The employee travels to a foreign country deemed to be a two or three travel warning by the CDC and:
- The travel was unrelated to employment
- The employee was notified of both the travel health warnings and this leave exclusion
Employees must submit a quarantine/isolation order from the employee’s local health department in order to be entitled to the leave. If the local health department is unable to immediately provide the employee with the order of quarantine or isolation, the employee should submit documentation from a licensed medical provider that has treated the employee, attesting that the employee will qualify for the order and to provide other relevant information as further described in the guidance document.
Returning From Leave
Employees returning from this leave must be restored to the position held prior to any leave taken pursuant to this act with the same pay and other terms and conditions of employment.
Nothing in this law prohibits any personnel action which otherwise would have been taken regardless of any request to use, or utilization of, any leave under this act. (e.g., employment termination, layoff, furlough).
No employer shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to the act.
The provisions of the act do 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 mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.
Collective Bargaining Agreements
Nothing in this law diminishes employee rights under collective bargaining agreements.
Interplay With Federal Law
The law also provides that if a federal law passes providing sick leave and/or employee benefits related to COVID-19, the New York quarantine law provisions, including but not limited to, paid sick leave, paid family leave, and benefits due to disability, shall not be available to employees otherwise subject to this law, unless New York’s law provides for greater benefits. Accordingly, employers need to evaluate all leave requests to determine whether the New York Quarantine Law, the Emergency Paid Sick Leave Act (E-PSLA), and/or the Emergency Family and Medical Leave Expansion Act (E-FMLEA) are triggered, and evaluate what benefits are available to the employee.
For more information, please contact:
- Kristin Klein Wheaton
- Christopher P. Maugans
- Caroline J. Berdzik
- Or another member of our Employment and Labor practice