New York State Enacts Paid Sick Leave for COVID-19 Quarantines, Lowers Percentage of Employees Allowed Onsite

COVID-19 Update

Date: March 19, 2020

On March 18, 2020, Governor Andrew Cuomo signed into law new legislation providing job-protected sick leave and additional benefits to New York employees impacted by the COVID-19 pandemic. Operating as a supplement to the federal Families First Coronavirus Response Act signed by President Trump on the same day, the New York law provides job-protected leave to employees who may not be covered by the federal legislation.

When viewing the New York and federal laws together, all New York employers are now required to provide at least 80 hours of paid leave to any full-time employees who are subject to a “mandatory or precautionary order of quarantine or isolation” issued by a public health agency. For part-time employees, employers must provide anywhere from five to 14 days of paid leave depending on an employer’s overall head count as of January 1, 2020. Much like the federal law, New York employers are also prohibited from discharging, penalizing or otherwise discriminating against employees who take leave under the law.

Unlike its federal counterpart, the New York law imposes paid leave requirements on employers with 500 or more employees. In practice, this means that all employers in New York with at least 100 employees must provide a minimum of 14 days of paid job-protected leave to employees who are subject to an order of quarantine or isolation related to COVID-19. Any paid leave provided under the New York law cannot be deducted from an employee’s previously accrued sick leave.

The New York law contains several exemptions from its leave requirements. First, an employee is not entitled to any job-protected leave if the employee is asymptomatic, has not been diagnosed with COVID-19, and is physically able to work remotely while under a mandatory or precautionary quarantine or isolation order. Second, employees are only entitled to unpaid leave under the New York law if they have recently returned from non-business travel to countries for which the Centers for Disease Control has issued a level 2 or level 3 travel health notice and the employee received notice that they would not be entitled to paid leave under New York law prior to such travel. In both situations, however, employees may still be eligible for paid leave under the new federal law.

Unlike the federal law, the New York legislation also accounts for employee absences related to COVID-19 that may exceed any period of paid leave. In particular, the New York law expands the definitions of “disability” and “family leave” to specifically cover employees impacted by COVID?19. Under the revised definition, an employee will now be considered “disabled” (and entitled to statutory disability benefits) when he or she is unable to work due to a mandatory or precautionary order of quarantine or isolation and has exhausted any paid leave provided under federal or state law. Similarly, employees are now eligible for paid “family leave” benefits if they must miss work because: (1) they are subject to an order of quarantine or isolation, or (2) they need to care for a child who is subject to such quarantine or isolation. Thus, the New York law provides enhanced protections for employees if they remain unable to work beyond any period of paid leave under federal and state law.

On March 18, 2020, Cuomo issued Executive Order No. 202.6: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency, requiring most businesses in New York state to work with no more than 50% of employees onsite. The executive order does not apply to essential businesses (which are defined to include the following: “essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.” Any other business may request that it be deemed essential after requesting an opinion from the Empire State Development Corporation (ESDC), which shall review such request and respond. The ESDC is required to issue further guidance on what businesses are deemed to be essential by 5 p.m. on March 20, 2020, and is accepting questions regarding waivers via email at COVID19BusinessWaiver@esd.ny.gov.

On March 19, 2020, Cuomo signed a new executive order which, given the rise in COVID-19 cases in New York, decreases the percentage of employees allowed onsite to no more than 25% of an employer’s workforce at a particular location. In light of these new legal requirements, New York employers should immediately take steps to implement paid leave procedures for employees who may need to miss work due to the COVID?19 pandemic. Consistent with Cuomo’s executive order issued on March 18 and effective March 20 at 8 p.m., employers who do not have exemptions as essential businesses or entities providing essential services or functions must also reduce their in-person workforces at all work locations.

FOR MORE INFORMATION

For additional information regarding the paid leave requirements for New York employers, as well as other recommended steps for addressing COVID-19 concerns, please contact:

Rebecca Brazzano
212.908.3941
Rebecca.Brazzano@ThompsonHine.com

Matthew R. Kissling
216.566.5586
Matthew.Kissling@ThompsonHine.com

or any a member of our Labor & Employment group.

ADDITIONAL RESOURCES

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID?19 Task Force web page for additional information and resources.

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