New York Enacts Emergency COVID-19 Paid Sick Leave Law

On March 18, 2020, the State of New York enacted new legislation providing sick leave to employees in New York State during the COVID-19 outbreak. The bill (S.8091/A.10153) took effect immediately. The new law, which is an extension of the existing New York Paid Family Leave law, provides sick leave to employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the New York State Department of Health, local board of health, or any governmental entity duly authorized to issue such an order. Employees whose children are home from school due to an order of mandatory or precautionary quarantine or isolation issued by the State of New York or any authorized government entity due to COVID-19 are also eligible for paid sick leave under this new law.

BENEFITS

The benefits provided for quarantine leave depend on the size of the employer, as follows:

• A private employer with 100 or more employees as of January 1, 2020, is required to provide employees with 14 days of paid sick leave.
• A private employer with 11 to 99 employees as of January 1, 2020, or an employer with 10 or fewer employees but an annual income of greater than $1 million in 2019, must provide employees with at least 5 days of paid sick leave while on quarantine. After those days are used, employees may be eligible for compensation for the remainder of the quarantine by applying for paid family leave and disability benefits.
• A private employer with 10 or fewer employees as of January 1, 2020 and annual income less than $1 million in 2019 must provide employees with unpaid sick leave during the period of quarantine. Employers of 1 or more employees must already provide disability and paid family leave benefits to employees, and this requirement is not changed by the new rules related to Emergency COVID-19 Paid Sick Leave. The disability and paid family leave insurance policies will provide benefits to employees who are on quarantine.
• A public employer of any size (the state, a county, city, town or village, a school district, etc.) must provide employees with at least 14 days of paid sick leave.

Although the new law does not specify, we interpret it to mean that the size of the employer is based on the number of employees working in New York State.

PROCEDURE

Emergency COVID-19 paid sick leave is separate from any existing paid sick leave or other accruals (paid time off). Employers may not require employees to use existing paid time off prior to obtaining Emergency COVID-19 paid sick leave.

Employees do not have to apply for the paid sick leave under this law. Once paid sick leave runs out, employees must apply for paid family leave and disability benefits for compensation during the rest of the quarantine or isolation. Employees seeking paid family leave must provide their employer with the mandatory or precautionary order of quarantine or order of isolation as well as 1 of 2 new state-issued forms: either the “Request for COVID-19 Quarantine DB/PFL – Self” or the “Request for COVID-19 Quarantine PFL for Minor Child” form. (Both are available on a dedicated COVID-19 Paid Leave page on the state’s website.) The employer must then complete the employer portions of the forms and return the forms to the employee within 3 business days. Employees then submit the leave request package directly to the disability/paid family leave insurance carrier. Employees eligible for a combination of paid family leave and disability benefits will receive their weekly wages up to a maximum of $2,884.62 per week.

EXCEPTIONS

Employees who are able to work from home, even under a mandatory or precautionary order of quarantine or isolation, are not eligible for benefits under this law. Thus, employees required to stay home due to Governor Andrew Cuomo’s March 20, 2020, executive order directing businesses that rely on in-office personnel to decrease their in-office workforce by 100% may not be eligible for paid sick leave if they are physically able to work and can work via remote access or other means.

However, if an employee’s child’s school is closed due to a mandatory or precautionary order of quarantine or order of isolation issued by the State, its Department of Health, a local board of health, or other government entity, an employee may be eligible for paid family leave. But if the school is closed for preventative social distancing without an accompanying order of quarantine or order of isolation issued by a government entity, employees may not be eligible for benefits under this law.

AFTER THE QUARANTINE/ISOLATION ENDS

Employers may not discriminate or retaliate against employees for taking Emergency COVID-19 paid sick leave. Upon return, employees must be restored to the position they held prior to taking leave.

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For more information on paid leave options, see Mayer Brown’s Legal Update “US Employers Should Pay Close Attention to New Legislation Requiring Paid Leave Related to the COVID-19 Pandemic” and our Coronavirus COVID-19 Portal for additional insights on and analysis of the virus’s impact on business worldwide.

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