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March 19, 2020

New York Expands Paid Sick Leave for Employees Subject to COVID-19 Quarantine Order

On March 18, the New York Legislature passed an updated version of a bill mandating paid sick leave for employees that would also include employee protections and additional paid sick leave and other benefits resulting from the spread of COVID-19. However, the updated bill, which was signed by Governor Andrew Cuomo, only provides employee benefits and protections in the event of quarantine orders.

The new law more specifically provides that, in the event of a “mandatory or precautionary order of quarantine or isolation issued by the State of New York, the NY Department of Health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19,” the following benefits are required:

  • For employers with 10 or fewer employees and a net income of less than $1 million: Unpaid leave until the termination of any mandatory or precautionary order of quarantine or isolation and immediate access to Paid Family Leave and disability benefits (short-term disability) through the duration of quarantine or isolation
  • For employers with 11 to 99 employees and employers with 10 or fewer employees and a net income of at least $1 million: Five days of paid leave with unpaid leave after through the duration of the quarantine or isolation order and immediate access to Paid Family Leave and disability benefits (short-term disability) through the duration of quarantine or isolation.
  • For employers with 100 or more employees and public employers (regardless of number of employees): Fourteen days of paid leave with unpaid leave through the duration of the quarantine or isolation order

In respect to the act’s provisions related to eligibility for disability benefits and Paid Family Leave, the state:

(1) Expanded the definition of “disability” to include “the inability to do work because of a mandatory or precautionary order of quarantine after the employee has exhausted all paid sick leave,” which will entitle eligible employees to a percentage of their average weekly wages up to a maximum of $2,043.92 in benefits per week

(2) Expanded the definition of “family leave” to include:

a. Leave taken to comply with a mandatory or precautionary order of quarantine

b. To provide care for the employee’s minor, dependent child who is subject to a mandatory or precautionary order of quarantine, which will entitle eligible employees a percentage of their average weekly wages up to a maximum of $840.70 in benefits per week

Notably, the statutory leave and benefits provided under the new law will only be available to employees who have been officially and formally quarantined or isolated by a local or state government agency. In this regard, these benefits are not available to employees who are in voluntary quarantine or isolation, those who merely fear they have been infected by the virus, those who object to reporting to work for fear of exposure to the virus, and those who are placed on leave, layoff, or furlough by an employer.

Another important caveat is that the new law does not apply to employees who are asymptomatic but have been quarantined or isolated, those who have not yet been diagnosed with any medical condition, and those who are physically able to work remotely. The law also does not contemplate any benefits for employees who are home caring for children due to mandatory school closures as a result of the pandemic.

The legislation also excludes any employee who has traveled to a country for which the Centers for Disease Control and Prevention (CDC) has issued a level two or three travel health notice, provided that the travel was not taken as part of the employee’s employment or at the employer’s direction, the employee had notice of the CDC warnings, and the employee would otherwise be ineligible for benefits under this statute (e.g., the individual would not be disqualified from receiving benefits if Paid Family Leave was needed to care for a family member). Any employee denied benefits as a result of this travel, however, must be permitted to use their existing accrued but unused paid time off balances for this purpose.

The law also explicitly states that its prescribed leave benefits are in addition to any sick leave or paid time off already provided by the employer, and employers are prohibited from charging any employee’s existing balance of accrued paid time off for this purpose.

As a result of the various changes to the wage replacement eligibility rules, the statute also directs the Department of Financial Services to implement a risk adjustment pool to help stabilize the disability benefits and Paid Family Leave insurance carrier industry.

Lastly, the new law states that if federal COVID-19 benefits are approved, the new state benefits will only apply if they provide employee benefits in excess of what is available under federal law. In that regard, yesterday, the federal government passed the Families First Coronavirus Response Act, which guarantees certain employees paid time off for reasons related to the coronavirus. You can learn more about that legislation in this Barclay Damon legal alert.

These issues, as well other developments affecting employment as a result of COVID-19, will be discussed in detail during Barclay Damon’s free “NYS’s COVID-19 Sick Leave Act and Mandatory Workforce Reductions” webinar on Monday, March 23 at 10:00 a.m.

If you have any questions regarding the content of this alert, please contact Chris Harrigan, partner, at charrigan@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

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