New York State COVID-19 Sick Leave Law Impacts Employers of All Sizes
On March 18, 2020, Governor Andrew Cuomo signed into law a bill providing protections to employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19, and requiring both private and public employers to provide sick leave to those impacted employees. The amount of leave, and whether paid or unpaid, is determined based on the size of the employer (“COVID Sick Leave Law”).
Since the law took effect on March 18, 2020, the New York State Department of Labor (“DOL”) and the New York State Department of Health (“DOH”) have issued abundant guidance impacting the interpretation of the state’s COVID Sick Leave Law.
This Alert will provide a high-level overview of the COVID Sick Leave Law and the subsequent guidance from the state, and how it applies to employers of all sizes within New York State.
COVID-19 Sick Leave Law:
- Employers with ten (10) or fewer employees must provide unpaid sick leave until the termination of the employee’s mandatory or precautionary order of quarantine or isolation. During this period of unpaid leave, the employee is eligible for Paid Family Leave and disability benefits.
- Employers with ten (10) or fewer employees with a net income of greater than one (1) million dollars in the previous tax year, must provide at least five (5) days of paid sick leave, and unpaid leave thereafter, until the termination of the employee’s mandatory or precautionary order of quarantine or isolation. After the five (5) days of paid leave, the employee is eligible for Paid Family Leave and disability benefits.
- Employers with between eleven (11) and ninety-nine (99) employees, must provide at least five (5) days of paid sick leave, and unpaid leave thereafter, until the termination of the employee’s mandatory or precautionary order of quarantine or isolation. After the five (5) days of paid leave, the employee is eligible for Paid Family Leave and disability benefits.
- Employees with one hundred (100) or more employees, must provide at least fourteen (14) days of paid leave during the mandatory or precautionary order of quarantine or isolation.
All disability and Paid Family Leave benefits will be payable on the first day of disability.
This is job protected leave and employers are prohibited from discharging, threatening, penalizing, discriminating or retaliating against any employee because the employee took leave under this law.
The COVID-19 Sick Leave Law also applies to public employers who are required to provide at least fourteen (14) days of paid sick leave during the mandatory or precautionary order of quarantine or isolation. This law does not diminish rights of the public employers and employees under an existing Collective Bargaining Agreement.
Order of Quarantine:
As of March 18, 2020, a mandatory or precautionary order of quarantine or isolation is one issued by the State of New York, the Department of Health, local Board of Health, or any government entity duly authorized to issue such order due to COVID-19. In April 2020, the definition of an order of quarantine was expanded to include documentation from a licensed medical provider identifying the individual is subject to either mandatory or precautionary quarantine. As per the guidance, the attestation from the medical provider must include specific information to qualify as an order of mandatory or precautionary quarantine.
In May 2020, guidance was issued specific to health care providers addressing when a health care employee will be subject to a mandatory order of quarantine and when the employee may return to work after testing positive and/or being symptomatic for COVID-19.
Travel Restrictions:
An employee is not entitled to paid sick leave where the employee is subject to a mandatory or precautionary order of quarantine because the employee has returned to the US after traveling to a country with a level 2 or 3 travel health notice and the travel to that country was not taken as part of the employee’s employment or at the direction of the employee’s employer, and if the employee was provided notice of the travel health notice and the limitations of this subdivision prior to such travel. The employee may utilize accrued leave provided by their employer or unpaid sick leave for the duration of the quarantine or isolation.
On June 24, 2020, Governor Cuomo issued a travel advisory requiring mandatory 14-day quarantine for individuals arriving in or returning from “Designated States.” Designated States are experiencing significant community spread. Employees will not be eligible for COVID-19 Sick Leave, unless the travel was at the request of their employer. Note that if the employee returns from a Designated State and is subject to an order of quarantine pursuant to the state’s advisory, the employee may be eligible for COVID-19 sick leave under the federal Families First Coronavirus Response Act if all other eligibility requirements are satisfied. There are exemptions from these travel restrictions for essential workers and are limited based on the duration of time in designated states, as well as the intended duration of time in New York.
Health Care Providers:
There is no opt out in the COVID-19 Sick Leave Law for health care providers as with the Families First Coronavirus Response Act. Thus, health care providers must provide COVID-19 sick leave in accordance with the above requirements.
DOH guidance issued in May 2020, specific to health care providers, addresses when a health care employee will be subject to a mandatory order of quarantine and when the employee may return to work after testing positive and/or being symptomatic for COVID-19.
As of June 25, 2020, the DOH advises that health care employees may be eligible for up to three (3) leaves covered under the COVID-19 Sick Leave Law. However, a health care provider will only receive the second and third covered leaves for positive COVID-19 cases. This is a significant departure from the plain language of the law.
The DOH also issued revised return to work protocols for health care providers for those employees who have traveled internationally, been exposed to a confirmed case of COVID-19, or traveled to a Designated State. Nursing homes are still subject to the 14-day quarantine or isolation requirements.
Next Steps:
Employers in New York State should become familiar with the requirements of the COVID-19 Sick Leave Law as well as the updated guidance from the state to ensure compliance with same.
Contact Us:
If you would like to discuss best practices for implementing and notifying employees of New York’s COVID-19 Sick Leave Law, please feel free to contact the Labor and Employment Department at Hinman Straub P.C.