Responding to the Coronavirus – Paid Sick Leave

March 19, 2020

On March 13, 2020, President Donald Trump declared the Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”) pandemic a national emergency in order to allocate up to $50 billion to respond to the outbreak. On March 18, 2020, the Administration also agreed to a relief package that would allocate tens of billions of dollars to sick leave, unemployment insurance, food stamps and other measures to address the crisis.  The new federal measures are known collectively as the “Families First Coronavirus Response Act” (“FFCRA”).  The FFCRA is effective fifteen days (15) from enactment, or April 2, 2020.

In addition, on March 15, 2020, Mayor Bill de Blasio announced the closure of New York City’s public school system, and Governor Andrew Cuomo announced similar closures for all New York public schools.  On March 18, 2020, New York passed its own emergency paid sick leave law, which is effective immediately.  

I. New York State Response: Paid Family Leave and Temporary Disability Insurance Benefits

While the federal law still excludes many workers from coverage, Governor Cuomo signed a new emergency paid sick leave package that guarantees at least two weeks of paid sick leave and job protection during a quarantine order for all public employees and employees of businesses employing 100 or more people.  Employers of 11 to 99 employees, or employers of 10 or fewer employees with net income of more than $1 million, must provide at least five (5) days paid sick leave and job security during a mandatory quarantine order, along with access to paid family leave and disability benefits during the isolation period.  Businesses with 10 or fewer employees and a net income of less than $1 million must provide job protection and access to paid family leave and disability benefits to affected workers.  The Act provides for the following:  

1. Emergency Paid Sick Leave Due to COVID-19

• Applies to those subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity authorized to issue such order due to COVID-19.
• Does not apply to those who returned from travel to level two or three countries for non-work-related travel.
• Employers with 10 or fewer employees (with net income less than $1 million in the previous tax year):
  • must provide employees with unpaid sick leave for the duration of any mandatory or precautionary order of quarantine or isolation.
  • thereafter, employees are eligible for paid family leave benefits and disability benefits under the Act.
• Employers with 10 or fewer employees (with net income more than $1 million in the previous tax year):
  • must provide employees with at least five (5) days of paid sick leave during a mandatory or precautionary order of quarantine or isolation,
  • must provide employees with unpaid sick leave for the duration of the mandatory or precautionary order of quarantine or isolation.
  • after the five days of paid sick leave, employees are eligible for paid family leave benefits and disability benefits under the Act.
• Employers with 11 to 99 employees:
  • must provide employees subject to a mandatory or precautionary order of quarantine or isolation with at least five (5) days of paid sick leave.
  • must provide employees with unpaid sick leave for the duration of the mandatory or precautionary order of quarantine or isolation.
  • after the five days of paid sick leave, employees are eligible for any paid family leave benefits and disability benefits under the Act.
• Employers with 100 or more employees:
  • Must provide employees subject to a mandatory or precautionary order of quarantine or isolation with at least fourteen (14) days of paid sick leave.
• Public employers:
  • Must provide employees and officers subject to mandatory or precautionary order of quarantine or isolation with at least (14) days of paid sick leave.
• Employees must be compensated at their regular rate of pay for hours they would have regularly worked.
• Nothing in the Act should infringe upon an employee’s rights under any law, rule or collectively bargained agreement, or benefits accrued through a collectively bargained agreement. 
• Employees must be returned to the same position following leave.
• Retaliation for taking leave is prohibited.

2. Disability and Family Leave Benefits Due to COVID-19

• “Disability” under the Act means inability to work as a result of a mandatory or precautionary order of quarantine or isolation.
• Does not apply to employees who are asymptomatic or not yet diagnosed with any medical condition and is physically able to work while under mandatory or precautionary order of quarantine or isolation.
• Disability benefits are available on the first day of disability.  
• “Family leave” under the Act means leave taken for the following:
  • the employee is subject to a mandatory or precautionary order of quarantine or isolation; or
  • to provide care for a minor dependent child who is subject to a mandatory or precautionary order of quarantine or isolation.
• Benefits may be payable concurrently to an eligible employee upon the first day of mandatory or precautionary order of quarantine or isolation.  
  • However, an employee may not collect benefits that would exceed $840.70 in paid family leave benefits and $2,043.92 in disability benefits per week.

The law also provides that if the federal government provides sick leave and/or employee benefits by law or regulation related to COVID-19, then the sick leave, family leave and disability benefits in this Act will not be available.  However, if the provisions in this Act would provide greater benefits, then employees shall be able to claim the difference of the additional sick leave and/or employee benefits available under the Act. 

The Act is to take effect immediately.

II. Federal Response: Families First Coronavirus Response Act:
In order to stop the spread of the Coronavirus, the FFCRA provides for free testing for everyone who needs a test, including the uninsured.  In addition, the FFCRA provides for additional measures to put families first, including paid emergency leave, with ten (10) days of paid sick leave, and up to three months of paid family and medical leave, as well as enhanced unemployment insurance.  It also provides for enhanced food programs for children and seniors, and increased funds for Medicaid.  The leave provisions are contained in the “Emergency Paid Leave Act of 2020” and the “Paid Sick Days for Public Health Emergencies and Personal and Family Care Act.”

However, those benefits only apply to employees of businesses with fewer than 500 employees, or the government, who are infected by the virus, quarantined, have a sick family member or are affected by school closings.  For companies with fewer than 50 employees, the Labor Department will have the option of exempting their workers if it determines that providing paid leave “would jeopardize the viability of the business as a going concern.”  It also excludes “certain health care providers and emergency responders” from the benefits.

1. Emergency Family and Medical Leave Expansion Act

Currently there is no federal requirement for employers to provide paid sick leave. The Family and Medical Leave Act (“FMLA”) only provides for up to twelve (12) weeks of unpaid leave for certain medical situations for the employee or the employee’s immediate family member, or up to 26 weeks for a covered service member.  

The new legislation amends the FMLA, by adding Section 102(a)(1)(F), known as the “Emergency Family and Medical Leave Expansion Act,” which provides for public health emergency leave, as follows: 

Eligibility:

• A public health emergency is an emergency with respect to COVID-19, declared by a federal, state or local authority.  
• Qualifying reason to take leave under this section for a public emergency is limited to employees unable to work (or telework), to care for a son or daughter under 18 years if the school has been closed or the child care provider is unavailable due to a public health emergency. 
• Excludes days that an individual receives pay from employer (regular wages, sick pay, or other paid time off).
• Applies to employees who were working 30 days prior to being impacted by the Coronavirus.

Exclusions

• Excludes employers with greater than 500 employees.
• The Secretary of Labor may exclude employers with fewer than 50 employees, if the requirements would jeopardize the viability of the business as a going concern.
• An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees. 
• The Secretary of Labor may exclude certain health care providers and emergency responders as eligible employees.

Benefit

• Provides that the first 10 days of leave under Section 102(a)(1)(F) may be unpaid;
  • However, an employee may elect to substitute accrued vacation leave, personal leave or medical or sick leave for unpaid leave under Section 102(a)(1)(F).
• An employer must provide paid leave for each day after the first 10 days.
• The compensation paid to employees must not be less than two-thirds of the employee’s regular rate (as determined by section 7(e) of the FLSA),
  • The number of hours is determined by the hours the employee is normally scheduled to work;
  • If on a flexible schedule, the average number of hours is determined by the average hours the employee was scheduled per day over a 6-month period
• The benefit is capped at $200 per day, or $10,000 total. 

Application

• The employee must provide the employer with such notice of leave as is “practicable.”
• The employer must be restored to his/her position upon return from leave
  • Exception for employers with fewer than 25 employees, if the employee takes leave under Section 102(a)(1)(F), and the position no longer exists due to economic conditions caused by the public health emergency, and reasonable efforts were made to restore the employee to an equivalent position.
• Employers who are signatory to multi-employer collective bargaining agreements (“CBA”) may, consistent with their CBAs, make contributions to a multiemployer fund or plan based on the hours of paid sick time each employee is entitled to under the Act; employees may secure pay from such fund or plan.
• The Act takes effect 15 days after the date of enactment.

B. Emergency Paid Sick Leave Act

The FFCRA also includes a section known as the “Emergency Paid Sick Leave Act,” which provides for the following:  

Eligibility:

• Applies to private employers who employ fewer than 500 employees.
• Applies to public agencies or entities employing 1 or more employees, but certain employers with fewer than 50 employees can be exempt.
• Paid sick time is provided to an employee who is unable to work (or telework) for the following qualifying reasons: 
  1. the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19; 
  2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. the employee is caring for an individual who is subject to an order of quarantine or isolation or is has been advised to self-quarantine;
  5. the employee is caring for a son or daughter whose school has closed or child care provider is unavailable due to COVID-19 precautions; or
  6. the employee is experiencing any other substantially similar symptoms.
     • However, employers may exclude health care providers and emergency responders from this requirement.  
• Employees are eligible for paid sick leave immediately, regardless of length of employment.
• Employers cannot require that employees search for a replacement to cover their hours in order to receive paid sick time under the Act.

Exclusions

• Excludes employers with greater than 500 employees.
• The Secretary of Labor may exclude employers with fewer than 50 employees, if the requirements would jeopardize the viability of the business as a going concern.
• The Secretary of Labor may exclude certain health care providers and emergency responders as eligible employees by allowing the employer to opt out.    
• An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees.

Benefit

• Full-time employees are entitled to 80 hours of paid sick time.
• Part-time employees are entitled to paid sick time determined by the average number of hours worked over a 2-week period.
• The employee must be compensated at the greater of the employee’s regular rate of pay, or the minimum wage.
  • However, for employees who are caring for a family member who is in isolation or experiencing symptoms, or who are caring for a child due to the closure of a school or child care facility, the employee will be paid two-thirds of the amount.  
• The benefit is capped at $511 per day or $5,110 total for leave under the first three reason – the employee’s own condition.
  • However, the benefit is capped at $200 per day or $2,000 total for the care of others.  
• The number of hours is determined by the hours the employee is normally scheduled to work.
  • If on a flexible schedule, the average number of hours is determined by the average hours the employee was scheduled per day over a 6-month period.
• Employees may not carryover unused sick pay to the following year.
• Employees may first use paid sick time available under the Act.
• However, employers may not require employees to use other paid leave first before using paid sick leave under the Act.
• Employers need not pay employees for unused paid sick time upon separation.

Application

• The employee must provide the employer with “reasonable” notice of taking leave.
• Employers must post notice of this Act in a conspicuous place, a model of which will be provided by the Secretary of Labor within 7 days of the enactment of the Act.
• Protects against prohibited acts of discharging, disciplining, or discriminating against an employee who takes leave in accordance with the Act, or has filed a complaint related to the Act.
• Employers who fail to provide paid sick leave under the Act are considered to have violated the minimum wage provisions of section 6 the FLSA, and are subject to penalties.
• Employers who willfully engage in prohibited acts will be considered to be in violation of section 15(a)(3) of the FLSA, and are subject to penalties.
• Employers who are signatory to multi-employer collective bargaining agreements (“CBA”) may, consistent with their CBAs, make contributions to a multiemployer fund or plan based on the hours of paid sick time each employee is entitled to under the Act; employees may secure pay from such fund or plan.
• Nothing in the Act should diminish the rights or benefits an employee is entitled to under any law, collectively bargained agreement, or existing employer policy. 
• The Act takes effect 15 days after the date of enactment.
• The Act expires on December 31, 2020.

III. Other Relevant Leave Laws:

In addition to the new laws, New York employers must also comply with all relevant federal, state and local laws and rules concerning sick leave, including the following summarized below.

A. Family and Medical Leave Act

The FMLA allows eligible employees to take up to twelve (12) weeks of job-protected unpaid leave for certain family and medical reasons, or up to twenty-six (26) weeks of unpaid leave to care for a covered service member. The following is an overview of leave under the FMLA: 

• Applies to private employers with 50 or more employees;
• Applies to public employees regardless of number of employees;
• Provides for twelve (12) weeks of unpaid leave in a twelve-month period;
• Eligible after 1,250 hours worked during a twelve-month period;
• Can be used for the serious health condition of the employee;
• Can be used for the serious health condition of the employee’s family member;
• Provides for twenty-six (26) weeks of unpaid leave in a twelve-month period to care for a covered service member with a serious injury or illness;
• Employers can require employees to use accrued paid vacation leave, sick time or family leave while on FMLA leave
• Protects against prohibited acts of interfering with FMLA rights, or discharging or discriminating against employees who exercises their rights under the FMLA.

B. New York Paid Family Benefits Law

Prior to recent legislation, New York State did not require private employers to offer paid sick leave.  Instead, under New York’s Paid Family Benefits Law, private employers with at least one employee are required to provide up to ten (10) weeks of job-protected paid family leave (“PFL”) to care for a family member with a serious health condition.  However, it cannot be used for an employee’s own serious health condition. If eligible, the employee can receive wage replacement benefits of 60% of the employee’s average weekly wage, up to the maximum of 60% of the current statewide average weekly wage of $1,401.17. The maximum weekly benefit for 2020 is $840.70. The following is an overview of leave under PFL:

• Applies to private employers with one or more employee;
• Public employers may opt in;
• Eligible after 26 consecutive weeks of employment if regularly working 20 or more hours per week;
• Eligible after 174 days worked if regularly working less than 20 hours per week;
• Provides for up to ten (10) weeks of paid leave per year at up to 60% of benefits;
• Can be used to care for a family member with a serious health condition;
• Cannot be used for employee’s own serious health condition;
• Employers cannot require employees to use paid time off while on PFL;
• Protection against discrimination or retaliation for requesting or taking PFL. 

C. New York City Earned Safe and Sick Time Act

Under New York City’s Earned Safe and Sick Time Act (“ESSTA”), employers with five (4) or more employees must allow employees who work at least 80 hours in a year in NYC with up to 40 hours a year of paid sick time.  Employers with one (1) to four (4) employees must allow employees who work at least 80 hours a year in NYC with up to 40 hours a year of unpaid sick leave.  Eligible employees can use accrued safe and sick leave for the care and treatment of themselves or a family member.  Note that if an employer provides employees time off for other purposes, such as vacation or personal leave, the employer does not have to provide additional time designated for safe and sick leave, if the employee can use that time off for safe and sick leave, and the employer’s policies otherwise meet the requirements for ESSTA.  The following is an overview of leave under the ESSTA:

• For paid leave - applies to private and nonprofit employers with 5 or more employees who work 80 or more hours a calendar year in NYC;
• For unpaid leave - applies to private and nonprofit employers with 1-4 employees who work 80 or more hours a calendar year in NYC;
• Provides for up to 40 hours of sick leave per year, accrued at one hour for every thirty hours worked;
• Applies to full and part time employees;
• Eligible after 120 days of employment;
• Can be used for the treatment of employee’s own health condition; 
• Can be used for the care or treatment of a family member;
• Can be used for the closure of the employee’s workplace due to a public health emergency;
• Can be used for an employee’s need to care for a child whose school or care facility is closed as a result of a declared public health emergency;
• Protection against retaliation for use of earned sick leave.

D. Westchester County Earned Sick Leave Law

Similarly, Westchester County enacted the Westchester County Earned Sick Leave Law (“ESLL”), which requires employers with five (5) or more employees in Westchester to provide eligible employees with up to 40 hours of paid sick time per calendar year.  Employers with (1) to four (4) employees in Westchester must provide up to 40 hours of unpaid earned sick time.  The following is an overview of leave under the ESLL:

• For paid leave - applies to private and nonprofit employers with 5 or more employees who work 80 or more hours a calendar year in Westchester;
• For unpaid leave - applies to private and nonprofit employers with 1-4 employees who work 80 or more hours a calendar year in Westchester;
• Provides for up to 40 hours of sick leave per year;
• Applies to full and part time employees;
• Eligible after 90 days of employment;
• Can be used for the treatment of employee’s own health condition; 
• Can be used for the care or treatment of a family member;
• Can be used for the closure of the employee’s workplace due to a public health emergency;
• Can be used for an employee’s need to care for a child whose school or care facility is closed as a result of a declared public health emergency;
• Protection against retaliation for use of earned sick leave.

IV. Sick Leave Laws Applicable to New York Employers:

In light of the new federal and state legislation, and other applicable sick leave laws already in place, employers in New York must provide the following benefits for employees unable to work due to the COVID-19 crisis.

Takeaway for Employers:

Employers should review all applicable leave policies to ensure coordination with the New York emergency paid leave law which takes effect immediately, and the Families First Coronavirus Response Act which takes effect within fifteen (15) days of its enactment.

These materials were prepared by Putney, Twombly, Hall & Hirson LLP prior to their combination with Bond, Schoeneck & King for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create an attorney-client relationship or an attorney-client privileged communication. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.