Bylined Articles

New York's New Job Protected Paid Leave Law

By Eve I. Klein and Rebecca S. Ruffer
March 26, 2020
New York Law Journal

When does it apply and how does it tie together with the Federal Families First Coronavirus Response Act?

Photo of Attorney Eve Klein

Eve I. Klein

Photo of Attorney Rebecca Ruffer

Rebecca S. Ruffer

On March 18, 2020, Gov. Andrew Cuomo signed into law Senate Bill 8091 (the Act), which guarantees certain leave, benefits and job protections to employees affected by COVID-19, effective immediately. The Act’s key provisions are summarized below.

New York COVID-19 Sick Leave and Benefits

Sick Leave. 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 Jan. 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.

While the Quarantine Order definition above is vague on its face, based on legislative history and New York State Department of Health (NYSDOH) guidance, it appears it is intended to be construed narrowly.

The legislative history of the Act indicates that it is up to the local departments of health to determine what requires an order of isolation or quarantine. The NYSDOH’s previous interim COVID-19 guidance for local health departments may provide the most reliable definition for the time being. The NYSDOH requires local health departments to issue mandatory or precautionary quarantine orders if an individual has had close contact with a person who has tested positive or if an individual has traveled to certain countries. The Act’s March 18, 2020, Assembly legislative history indicates that the sick leave is intended to be available for employees who are active and who have an actual order of quarantine from the NYSDOH or other entities authorized from the Commissioner of Labor who can craft a declaration of quarantine. By contrast, the executive order Governor Cuomo has issued directing the workforce of all nonessential businesses to stay home was issued through Article 29-A of the Executive Law and relates to powers of the governor during a public emergency; this statute is not limited to pandemics, and the governor does not refer to his order as one of quarantine or isolation.

Additionally, as drafted and interpreted by the governor’s Emergency COVID-19 Paid Sick Leave FAQ, 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 (this is despite the fact the legislative history indicates private employers who provide sick leave to employees may require employees to utilize that time before the provisions of the Act inure). The Act gives the Commissioner of Labor power to adopt regulations, including emergency regulations, and to issue guidance to implement the law, which may clarify employer obligations under the Act. Hopefully, such guidance will be issued shortly to provide definitive clarification over these important issues.

Disability Benefits and Paid Family Leave. The Act authorizes employees who are subject to an unpaid period of quarantine 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].”

Based on the above definitions, it initially appeared that employees subject to a quarantine would be eligible for both disability and family leave benefits concurrently, unless they had not been employed long enough for eligibility for disability or paid family leave. This remains true for employees taking leave because they are directly subject to a Quarantine Order, but updates to the New York State website suggest that employees taking leave to care for a minor child subject to a Quarantine Order are only eligible for NYPFL, not disability benefits.

Moreover, 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 appear to still be in place, i.e., 30 consecutive days and 26 consecutive weeks of employment for full-time employees, respectively.

The Act also waives the one-week unemployment insurance benefits waiting period in instances where an employer closes because of COVID-19 or because of a mandatory government order and the employer terminates its employees.

Eligible employees may collect up to $840.70 in NYPFL each week. The maximum weekly disability benefits an employee can collect is the difference between the $840.70 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.

By way of example:

  • If an employee 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 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.

Exceptions. 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 shall not receive 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 the United States after traveling to a country for which the CDC has a level 2 or 3 health notice for personal reasons, and if the employee was provided notice of the travel health notice and the limitations of this exception prior to such travel. 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.

Job Protection. When an employee returns to work following a 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.

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. On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (FFCRA). While the FFCRA has been enacted, its effective date is not later than April 2, 2020. So at least as of April 2, employers will have to compare both state and federal laws to determine whether state law provides any benefits in excess of those provided by the FFCRA. It is unclear if an employer can apply the FFCRA effective immediately so that it runs concurrently with benefits required under the Act.

The FFCRA provides two separate employment benefits―emergency sick leave and expanded Family and Medical Leave Act use. Employees are eligible to use emergency sick leave under the FFCRA for a broader range of reasons than permitted under the Act, as shown in a side-by-side comparison in the following chart. If employees are eligible to use sick leave, the chart further compares the amount of such leave to which those employees are entitled under the Act and the FFCRA.

Comparisons Between the Act and FFCRA

Qualifying reasons for sick leave: The Act (New York): Employees are potentially eligible for sick leave when they are “subject to a mandatory or precautionary quarantine or isolation order issued by the state of New York, the Department of Health, the local board of health, or any governmental entity duly authorized to make such an order due to COVID-19.”

FFCRA (Federal): Employees are potentially eligible for sick leave when they are unable to work (or telework) because they (1) are subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) have been advised by a healthcare provider to self-quarantine due to COVID-19 concerns; (3) are experiencing COVID-19 symptoms and seek a medical diagnosis; (4) are caring for an individual subject to an order described in item 1 or have been advised as a person in item 2; (5) are caring for their child if the child’s school or child care has been closed, or the child care provider is unavailable due to COVID-19 precautions; or (6) are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor.

Amount of sick leave provided based on size of employer (private employers): 500 or more employees: The Act (New York) (14 days of paid sick leave and unpaid leave until the termination of the quarantine (part-time proportionate to time worked)); FFCRA (Federal) (No provisions).

100-499 employees: The Act (New York) (14 days of paid sick leave and unpaid leave until the termination of the quarantine (part-time proportionate to time worked)); FFCRA (Federal) (80 hours of paid sick leave (10 work days) and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a two-week period).

51-99 employees: The Act (New York) (five days of paid sick leave and unpaid leave until the termination of the quarantine (part-time proportionate to time worked)); FFCRA (Federal) (80 hours of paid sick leave (10 work days) and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a two-week period).

11-50 employees: The Act (New York) (five days of paid sick leave and unpaid leave until the termination of the quarantine (part-time proportionate to time worked); FFCRA (Federal) (80 hours of paid sick leave (10 work days) and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a two-week period, unless exempted as a small business with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business).

10 employees or less and a net income of less than $1 million in the previous tax year: The Act (New York) (Unpaid sick leave); FFCRA (Federal) (80 hours of paid sick leave (10 work days) and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a two-week period, unless exempted as a small business with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business).

Rate of pay for benefits paid: Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: The Act (New York) (Employees eligible for paid sick leave are entitled to full pay); FFCRA (Federal) (Paid sick leave calculated at employee’s regulate rate capped at $511 per day and $5,110 in the aggregate).

Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or employee is experiencing symptoms of COVID-19 and seeks a medical diagnosis: The Act (New York) (Not applicable); FFCRA (Federal) (Paid sick leave calculated at employee’s regulate rate capped at $511 per day and $5,110 in the aggregate).

Employee is caring for an individual who is subject to an order or has been advised by a health care provider to self-quarantine; employee is caring for his or her child if school or child care close or unavailable; or employee is experiencing any other substantially similar condition: The Act (New York) (Not applicable); FFCRA (Federal) (Paid sick leave calculated at two-thirds the employee’s regular rate capped at $200 per day and $2,000 in the aggregate).

NYPFL and FMLA. Qualifying reasons for leave: The Act (New York) (Employees are potentially eligible for NYPFL when subject to a Quarantine Order or if they need to provide care for a minor dependent child who is subject to a Quarantine Order); FFCRA (Federal) (Employees are potentially eligible for FMLA leave when they are unable to work (or telework) due to a need for leave to care for a child under 18 if their school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency).

Eligibility: The Act (New York) (Applies to employees subject to an unpaid period of Quarantine Order); FFCRA (Federal) (Applies to employers with fewer than 500 employees. The Secretary of Labor may exempt small businesses with fewer than 50 employees when the leave would jeopardize the business’s viability).

Amount of benefits—Calculation: The Act (New York) (NYPFL benefits are paid at 60% of an employee’s average weekly wage, up to the stated maximum. Employees can also tap into state disability benefits concurrently with paid family leave); FFCRA (Federal) (After the first 10 days of leave, the employer must provide paid leave for the remaining FMLA period at an amount that is not less than two-thirds of an employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work).

Amount of benefits—Maximum: The Act (New York) (NYPFL benefits are capped at $840.70 per week. Disability benefits are capped at $2,043.92 per week, as calculated in the text examples above; FFCRA (Federal) (Benefits are capped at $200 per day and $10,000 in the aggregate).

New York State on PAUSE Executive Order

On March 20, 2020, Governor Cuomo issued the New York State on PAUSE Executive Order effective March 22, 2020, at 8:00 p.m. until further notice. The order requires, among other things:

  • All businesses in the state to utilize, to the maximum extent possible, any telecommuting or work from home procedures they can safely utilize.
  • Employers must reduce in-person workforces at all New York work locations by 100 percent no later than March 22 at 8:00 p.m. (this updated two prior executive orders issued shortly before that first required in-person workforce reduction of 50 percent, then 75 percent).

These restrictions do not apply to essential businesses or entities providing essential services or functions. Essential businesses are: Essential health care operations; essential infrastructure; essential manufacturing; essential retail; essential services; financial institutions; providers of basic necessities to economically disadvantaged populations; construction; defense; 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

Relationship with the Act. While the Act’s vague language left room for the interpretation that this executive order would trigger the Act’s benefits and protections for employees, as discussed above, upon careful analysis of the statute and legislative history, it does not appear to as the Act’s coverage is only triggered by an employee’s receipt of “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 governmental entity duly authorized to issue such order due to COVID-19.”

Eve I. Klein is chair of Duane Morris’ employment, labor, benefits and immigration practice group and serves as the firm’s employment counsel. Rebecca S. Ruffer is an associate in the group. As New York state and the Department of Labor are currently interpreting the Act’s provisions and working to develop guidance materials, the information contained above is subject to change.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.