For New York employers, though, their responsibilities under Senate Bill 8091, which guarantees certain leave, benefits and job protections to employees affected by COVID-19, remain in full force.
The Families First Coronavirus Response Act (FFCRA) partially sunset as of December 31, 2020. Employers are no longer required to provide FFCRA leave to employees. While many thought federal benefits would be extended as part of the latest stimulus package signed on December 27, 2020, only the tax credit benefit was extended―and only through March 31, 2020. Covered employers who voluntarily continue to offer FFCRA leave through the first quarter of 2021 will be eligible for the FFCRA tax credit, which reimburses employers for the cost of providing FFCRA leave.
For New York employers, though, their responsibilities under Senate Bill 8091 (the “Act”), which guarantees certain leave, benefits and job protections to employees affected by COVID-19, remain in full force. Governor Andrew Cuomo initially signed the Act into law on March 18, 2020, but as 2020 and the pandemic progressed, the state issued numerous guidance documents expanding and clarifying the Act. The Act’s key provisions and relevant guidance are summarized below.
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, local board of health, or any government entity duly authorized to issue such order due to COVID-19” (Quarantine Order) are entitled to certain amounts of job-protected sick leave, largely dependent on their employer’s size as of January 1, 2020. There is no minimum period of employment required for employee eligibility.
- Employers with 100 or more employees must provide each employee subject to quarantine with at least 14 days of paid sick leave and unpaid leave until the termination of the Quarantine Order.
- Employers with between 11 and 99 employees must provide each employee subject to quarantine with at least five days of paid sick leave and unpaid leave until the termination of the Quarantine Order. Once paid leave has run out, employees are eligible for family leave and disability benefits.
- Employers with 10 or fewer employees must provide five days of paid sick leave to each employee subject to quarantine until the termination of the Quarantine Order, provided the employer earned more than $1 million in the previous tax year. Once paid leave has run out, employees are eligible for family leave and disability benefits. Employers with 10 or fewer employees that have a net income of less than $1 million in the previous tax year must provide each employee subject to a Quarantine Order with unpaid sick leave. During this period, employees are eligible for family leave and disability benefits.
To obtain a Quarantine Order, employees must contact their local health department (LHD). LHDs are required to provide written orders in a timely manner. If an LHD is unable to immediately provide employees with an order, employees may submit documentation from a licensed medical provider attesting that an employee qualifies for a Quarantine Order. Documentation from a licensed medical provider must include:
- If an employee is subject to mandatory isolation, an attestation the employee tested positive for COVID-19, or testing is currently unavailable to the employee but the employee is symptomatic and had contact with a known COVID-19 case;
- If an employee is subject to a mandatory quarantine, an attestation that the employee has been in close contact with someone who has tested positive for COVID-19 or is currently in mandatory isolation, or the employee is symptomatic and has returned within the past 14 days from a country designated by the CDC with a level 2, 3 or 4 advisory for COVID-19; or
- If an employee is subject to a precautionary quarantine, an attestation that the employee is asymptomatic and has returned within the past 14 days from a country designated with a level 2, 3 or 4 advisory for COVID-19, or the employee has been determined to have had proximate exposure with someone who has tested positive for COVID-19.
While employees may submit documentation from a licensed medical provider when they cannot immediately obtain a Quarantine Order, employees must still obtain a Quarantine Order by following up with their LHD. As soon as they are issued a Quarantine Order, employees must submit it to their insurance carrier.
Additionally, the Act’s leave provided by private employers to employees must be in addition to and without loss of an employee’s accrued sick leave.
Disability Benefits and Paid Family Leave
The Act authorizes employees who are subject to an unpaid quarantine period to utilize disability benefits and New York State Paid Family Leave (NYPFL), to the extent they qualify, for any portion of the Quarantine Order for which they do not receive paid leave.
The Act also expands the definitions of disability and family leave to encompass a greater number of employees. Under the Act, “disability” is defined as the “inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her” as a result of a quarantine. The Act waives the seven-day waiting period for disability benefits, making them payable on the first day of disability. “Family leave” is defined as “leave taken by an employee from work when an employee is subject to a [quarantine] or to provide care for a minor dependent child of the employee who is subject to a [quarantine].”
Employees subject to a quarantine are eligible for both disability and family leave benefits concurrently, unless they have not been employed long enough for eligibility for disability or paid family leave―i.e., 30 consecutive days and 26 consecutive weeks for full-time employees, respectively. Employees caring for a minor dependent child subject to a quarantine are only eligible for family leave benefits. While the seven-day waiting period to commence receipt of disability benefits has been waived, the qualifying periods for employee eligibility for disability and paid family leave benefits are still in place.
Due to the increase in NYPFL benefits in 2021, eligible employees may collect up to 67 percent of the employee’s total average weekly wage. However, the Act specifically caps the maximum an employee can collect at $840.70, while the separate New York Paid Family Leave benefit law cap has been increased to $971.61. The maximum weekly disability benefits an employee can collect is the difference between the $971.61 NYPFL maximum and the employee’s total average weekly wage, up to a maximum of $2,043.92 per week. NYPFL and disability benefits can be collected concurrently upon the first full day of an unpaid period of quarantine if the employee is personally subject to a quarantine. If an employee is caring for a minor dependent child subject to a quarantine, the employee may collect NYPFL benefits on the first full day of an unpaid period of quarantine.
By way of example:
- If an employee personally subject to quarantine earned $2,000 per week, and the employee was eligible for the maximum $840.70 in NYPFL, the employee would collect a total of $2,000 between disability benefits and NYPFL: $2,000 minus $840.70 (NYPFL maximum) equals $1,159.30 in disability benefits, plus an additional $840.70 in NYPFL, for an overall total of $2,000.
- If an employee personally subject to quarantine earned $4,000 per week, and the employee was eligible for the maximum $840.70 in NYPFL, the employee would collect a total of $2,884.62 between disability benefits and NYPFL: $4,000 minus $840.70 (NYPFL maximum) equals $3,159.30 in disability benefits. However, as disability benefits are capped at $2,043.92, the employee would collect that maximum, plus an additional $840.70 in NYPFL, for an overall total of $2,884.62.
The Act provides two exceptions relating to the ability to work and certain travel.
First, the Act would not apply in cases where the employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under quarantine, whether through remote access or other similar means.
Second, an employee will forgo paid sick leave or any paid benefits provided by the Act if the employee is subject to a Quarantine Order because the employee has returned to New York after engaging in nonessential travel to any states other than “contiguous states” or to a country for which the CDC has a level 2 or 3 health notice for personal reasons. Contiguous states are Connecticut, Massachusetts, New Jersey, Pennsylvania and Vermont. In this instance, the employee can use accrued leave, or if no accrued leave is available, the employee may take unpaid sick leave for the duration of the Quarantine Order. This exception does not apply if the employee travels for work or at the employer's request.
When an employee returns to work following quarantine, employers must restore the employee to his or her position of employment held prior to any leave taken with the same pay and other terms and conditions of employment. The Act also prohibits employers from discharging, threatening, penalizing or otherwise discriminating or retaliating against employees for taking protected leave. The Act does not prohibit employers from terminating employees due to the need for layoffs as a result in changed demand or need for employment services.
The Act also waives the one-week unemployment insurance benefits waiting period in instances where an employer closes because of COVID-19 or a mandatory government order and the employer terminates its employees.
Relationship with Federal Law
The Act only provides sick leave and/or benefits in excess of those provided by any federal COVID-19 sick leave and/or benefits. While this previously required employers to engage in a detailed comparison of state and federal laws, because the FFCRA leave requirements have expired, New York employers are now only currently required to comply with the Act. However, unpaid FMLA leave may still apply under standard rules and, with a new Congress and the incoming Biden administration, time will tell if mandatory FFCRA leave will be reinstated or the FFCRA otherwise modified. In addition, since the Act and the FFCRA can run concurrently for certain purposes, (e.g., the first 10 days of an employee’s sick leave), the leave can be dually designated so the employer can receive the FFCRA tax credit.
The FFCRA provided two separate employment benefits―emergency sick leave and expanded Family and Medical Leave Act use under circumstances where an employee was quarantined and unable to work remotely. Employees were eligible to use emergency sick leave under the FFCRA for a broader range of reasons than permitted under the Act but in different amounts. As state and federal laws differ, employers should consider seeking counsel to navigate these complexities.
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Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
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