New York State Issues FAQs Regarding the New COVID-19 Paid Sick Leave Law
March 26, 2020
New York State recently published some answers to frequently asked questions (FAQs) regarding the COVID-19 paid sick leave law that was enacted last week. The FAQs clarify some aspects of the law that were not clear from the text of the statute and give some insight into the manner in which the law will be interpreted and enforced.
According to the FAQs, the number of paid sick days required by the law is calendar days -- not work days. So, the five days of paid sick leave that an employer with 11-99 employees is required to provide is not a full work week of paid sick leave. It is only payment of the amount that an employee would have received for the five calendar-day period immediately after the effective date of the mandatory or precautionary order of quarantine or isolation. Similarly, the 14 days of paid sick leave that a public employer or a private employer with 100 or more employees is required to provide is essentially two calendar weeks of paid sick leave.
The FAQs confirm that an employee who was subject to a mandatory or precautionary order of quarantine or isolation that was issued prior to the enactment of the COVID-19 paid sick leave law is eligible for paid sick leave under the law if that order continued to be in effect after enactment of the law.
The FAQs also provide some guidance regarding the rate at which the sick leave must be paid under the law. According to the FAQs, the paid sick leave must be provided at the employee's regular rate of pay -- not simply the employee's base hourly rate of pay. So, if the employee earns other forms of compensation in addition to the base hourly rate of pay that would otherwise be required to be included in the regular rate for purposes of overtime computation (such as commissions or non-discretionary bonuses), those other forms of compensation must also be included in the computation of the regular rate for purposes of the paid sick leave law.
The FAQs also clearly state that an employee who chooses to self-quarantine is not entitled to paid sick leave under the law. The law only applies to employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the Department of Health, a local board of health, or a governmental entity authorized to issue such an order.
In response to the question of whether paid sick leave is available for employees who need to stay home with a child whose school is closed due to COVID-19, the answer is "no" if the school is closed only for preventive social distancing and not due to a mandatory or precautionary order of quarantine or isolation. Employers should keep in mind, though, that the federal Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act will go into effect on April 1, and those statutes will give employees the right to paid leave to care for a child whose school has been closed due to COVID-19.
If you have any questions about this Information Memo, please contact Subhash Viswanathan, any of the attorneys in our Labor and Employment Law Practice, or the attorney in the firm with whom you are regularly in contact.
