New York Government Reaches Deal on Coronavirus Sick-Leave Mandate

 

By Kimberly K. Harding, Brian Kopp and David A. Tauster © Nixon Peabody March 18, 2020
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New York has responded to the coronavirus with an agreement to provide immediate relief for employees who are subject to mandatory or precautionary quarantine or isolation due to the outbreak. 

The law protects employees by requiring employers to provide additional coronavirus-specific paid sick leave to employees, and expanding the state's disability and paid-family-leave benefits  to cover certain coronavirus-related leave. The governor and legislature are also using this crisis as an opportunity to propose a new paid sick leave mandate upon employers, separate and apart from the leave relating to coronavirus. However, this proposal was withdrawn from the legislation before it was passed and it remains to be seen if or when it will be enacted.

Similar to other recent legislation passed in favor of workers, such as paid family leave benefits and increases to the minimum wage, the new sick leave requirements (both relating to the coronavirus crisis and going forward) purport to provide for a tiered approach for benefits based on the size of the employer. The full details are described below.

Benefits for Employees 

Although the original agreement announced by the governor's office initially included a proposal for annual paid sick leave, these requirements ultimately were removed from the final legislation he signed. Should the annual sick leave legislation ultimately pass in the form proposed, employers will be required to provide all employees with sick leave at their regular rates of pay, pursuant to the following schedule:

Employer SizeEmployee Benefit
Ten (10) employees or fewer, and less than $1 million income in previous tax yearUnpaid leave until end of quarantine or isolation period
Ten (10) employees or fewer, and greater than $1 million income in previous tax yearFive (5) days paid leave, and unpaid leave for remainder of quarantine or isolation period
Eleven to ninety-nine (11-99) employeesFive (5) days paid leave, and unpaid leave for remainder of quarantine or isolation period
One hundred or more (100+) employeesFourteen (14) days paid leave, and unpaid leave for remainder of quarantine or isolation period
Public employeesFourteen (14) days paid leave, and unpaid leave for remainder of quarantine or isolation period

 For many employers, this legislation may have little to no practical effect, given the recent passage of federal coronavirus sick leave legislation that provides for eighty (80) hours of sick leave for full-time employees(and the number of hours of sick leave equal to the number of hours the employee works, on average, over a two-week period, for part-time employees) to use in the event they are, inter alia, subject to a federal, state, or local quarantine or isolation order due to COVID-19.

However, for any periods of quarantine or isolation during which the employee is not receiving paid leave from his or her employer, the employee will immediately be eligible for paid family leave and disability benefits under the respective statutes. To this end, the statute: 

  • Expands the definition of "disability" for purposes of the workers' compensation law to include "the inability to do work because of a mandatory or precautionary order of quarantine after the employee has exhausted all paid sick leave," which will entitle eligible employees to a percentage of their average weekly wages, up to a maximum of $2,043.92 in benefits per week.
  • Expands the definition of "family leave" for purposes of the workers' compensation law to include (a) leave taken to comply with a mandatory or precautionary order of quarantine or (b) to provide care for the employee's minor, dependent child who is subject to a mandatory or precautionary order of quarantine, which will entitle eligible employees a percentage of their average weekly wages up to a maximum of $840.70 in benefits per week.

Unlike the law recently passed at the federal level, the statutory leave and benefits set forth above will only be available to employees who have been officially quarantined or isolated by the government; they shall not be available to employees who are in voluntary quarantine or isolation, who merely fear they have been infected by the virus, or who object to reporting to work for fear of exposure to the virus. In addition, the law will not be applicable to employees who have been quarantined or isolated, but who are asymptomatic, not yet diagnosed with any medical condition, and are physically able to work remotely. It further does not contemplate any benefits for employees who are home caring for their children due to school closures precipitated by the coronavirus pandemic.

The law also expressly excludes from benefits any employee who has traveled to a country for which the Centers for Disease Control and Prevention (CDC) has a level two or three travel health notice, provided that the travel was not taken as part of the employee's employment or at the employer's direction, and provided further that the employee had notice of the CDC warnings and that he or she would be ineligible for benefits under this statute. Any employee denied benefits as a result of such travel, however, must be permitted to use their existing accrued but unused paid time off balances for this purpose.

The statute is clear that the leave it requires is in addition to any sick leave or paid time off already provided by the employer, and employers are prohibited from charging any employee's existing balance of accrued paid time off for this purpose.

Annual Sick Leave Requirements

Although the original agreement announced by the governor's office initially included a proposal for annual paid sick leave, these requirements ultimately were removed from the final legislation he signed. Should the annual sick leave legislation ultimately pass in the form proposed, employers will be required to provide all employees with sick leave at their regular rates of pay, pursuant to the following schedule:

Employer SizeEmployee Benefit
Four (4) or fewer employees, and less than $1 million net income in previous tax yearUp to forty (40) hours of unpaid sick leave
Four (4) or fewer employees, and greater than $1 million net income in previous tax yearUp to forty (40) hours of paid sick leave
Five to ninety-nine (5-99) employeesUp to forty (40) hours of paid sick leave
One hundred or more (100+) employeesUp to fifty-six (56) hours of paid sick leave

Employers will be permitted to provide employees with their full sick leave allotment at the beginning of the calendar year, or the leave can be provided on an accrual basis, provided that employees must accrue sick leave at a rate of not less than one hour per every thirty hours worked. 

Accruals will begin one hundred and eighty (180) days after the legislation is enacted (unless the Department of Labor designates an earlier effective date), or upon the employee's commencement of employment, whichever is later. 

In addition, although all accrued but unused sick leave must be carried over year-to-year, an employer with fewer than one hundred employees will be permitted to limit an employee's use of sick leave to forty (40) hours per calendar year, an employer with one hundred or more employees will be permitted to limit an employee's use of sick leave to fifty-six (56) hours per calendar year, and no employer shall be required to pay out any accrued but unused sick leave upon an employee's termination from employment.

Employees may use this job-protected leave for:

  • A mental or physical illness, injury, or health condition of the employee or the employee's family member.
  • The diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of the employee or the employee's family member.
  • An absence from work due to domestic violence, a sexual offense, stalking, or human trafficking so that the employee can avail himself or a family member of services or assistance.

For purposes of the statute, a family member includes an employee's child (including a biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis), spouse, domestic partner, parent (including a biological, foster, step- or adoptive parent, legal guardian, or person who stood in loco parentis when the employee was a minor child), sibling, grandchild or grandparent, as well as the child or parent of an employee's spouse or domestic partner.

Nothing in the proposed statute prevents employers who provide sick leave on a more generous basis than that required from continuing to do so, provided their sick-leave policies meet the minimum requirements of the statute, and employees are permitted to use such leave for the purposes set forth above. 

Similarly, employers with existing sick-leave or time-off policies that meet or exceed the statutory accrual, carryover, and use requirements will not be required to provide any additional leave to employees as a result of the statute. Lastly, the statute also does not diminish the provisions of any other local sick leave law (including the New York City Earned Sick and Safe Time Act), and the statute permits New York City to enact and enforce additional legislation that meets or exceeds the standards of the statute.

Kimberly K. Harding and Brian Kopp are attorneys with Nixon Peabody in Rochester, N.Y. David A. Tauster is an attorney with Nixon Peabody in Long Island, N.Y. © 2020 Nixon Peabody. All rights reserved. Reposted with permission. 

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