Federal Government and New York State Enact COVID Leave Legislation
On March 18, President Trump signed the “Families First Coronavirus Response Act” (the “Families First Act” or the “Act”). Among other provisions, the Act expands the coverage of the Family and Medical Leave Act (“FMLA”) through December 31, 2020 to cover childcare needs related to a public health emergency for all employers with fewer than 500 employees. The Act also requires such leave to be paid, up to a cap. In addition, the Act provides emergency paid sick leave for all employers with fewer than 500 employees. To offset these costs, the Families First Act grants employers tax credits for amounts paid for expanded FMLA and sick leave, up to specific caps. The expanded FMLA and emergency paid sick leave requirements go into effect on April 1, 2020.
Additionally, on March 17, Governor Andrew Cuomo announced that the state government had come to an agreement regarding the provision of emergency paid leave for employees impacted by mandatory or precautionary orders of quarantine due to the COVID-19 virus. The bill provides for employer-sponsored sick leave, as well as paid leave via disability and paid family insurance. The bill was signed into law on March 18 and goes into effect immediately upon passage. The NY state bill explicitly notes that the federal bill preempts its provisions, except for instances where the NY legislation would have provided sick leave or benefits in excess of the benefits provided by the federal government’s legislation.
Federal Families First Act
Expanded FMLA
Who Receives Expanded FMLA?
Expanded FMLA applies to any employer with fewer than 500 employees and to employees who have been employed for at least 30 calendar days by the employer. The Secretary of Labor may, however, exclude certain health care providers and emergency responders from coverage and may also exempt small businesses with fewer than 50 employees when the imposition of the requirements would “jeopardize the viability of the business as a going concern.” Additionally, employers of health care providers and emergency responders may themselves elect to exclude such employees from the scope of the expanded FMLA. Expanded FMLA is in effect until December 31, 2020.
What Are the Reasons for Expanded FMLA Leave?
Expanded FMLA may be taken for a qualifying need related to a public health emergency. A qualifying need means that the employee is unable to work (or telework) because the employee needs to care for the employee’s son or daughter who is under 18 and whose school or place of care has been closed, or where the childcare provider of the son or daughter is unavailable, due to a public health emergency related to coronavirus, as declared by a federal, state, or local authority.
Is the Leave Paid or Unpaid?
The first 10 days of the leave is unpaid. The employee may elect to substitute accrued vacation, personal leave, medical or sick leave, including applicable federal emergency sick leave discussed below. Each day of leave after ten days shall be paid at a rate of 2/3 of the employee’s regular rate of pay as based on the number of hours the employee would otherwise normally be scheduled to work, up to a cap of $200 per day and $10,000 in the aggregate. If an employee’s schedule varies from week to week so the employer cannot determine with certainty the number of hours the employee would have worked, the employee’s average hours should be calculated by looking at the average number of hours that the employee was scheduled per day over the 6 month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any kind. If, however, the employee did not work over that time, the employer should utilize the “reasonable expectation of the employee at the time of hiring” as to the average number of hours per day the employee would normally be scheduled to work.
Does the Employee Need to Provide Notice of Need for Expanded FMLA Leave?
Yes. If the need for leave is foreseeable, notice should be provided as soon as practicable.
Does the Employee Have Restoration Rights Following the Expanded FMLA Leave?
Yes, employees have the same restoration rights as under the standard FMLA. However, employers with fewer than 25 employees do not have to provide reinstatement if:
The employee takes the expanded FMLA leave
The employee’s position does not exist anymore due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by the public health emergency during the period of leave
The employer makes reasonable efforts to restore the employee to an equivalent position, with equal benefits, pay and other terms and conditions of employment
It the employer’s efforts fail, the employer has to make reasonable efforts to contact the employee if an equivalent position becomes available. The employer must make these efforts for one year from the earlier of: the date the public health emergency concludes or the date that is 12 weeks after the employee’s expanded leave commences.
Anything Else?
There are special provisions for employers who are signatories to multiemployer collective bargaining agreements.
Emergency Paid Sick Days
Who is Eligible for Emergency Sick Time?
Any employee, as defined by the Fair Labor Standards Act, regardless of how long they have been employed by the employer, who works for any person engaged in commerce or in any industry or activity affecting commerce that employs fewer than 500 employees. For public agencies or other entities that are not private entities or individuals, they must employ 1 or more employees. Like expanded FMLA, the Secretary of Labor may exclude certain health care providers and emergency responders from coverage and may also exempt small businesses with fewer than 50 employees when the imposition of the requirements would “jeopardize the viability of the business as a going concern.” Employers of health care providers and emergency responders may also elect to themselves exclude such employees from the scope.
For What Reason Can an Employee Take Emergency Sick Leave?
The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
The employee is caring for an individual subject to a quarantine or isolation order or who has been advised by a healthcare provider to self-quarantine
The employee is caring for the employee’s son or daughter if the school or place of care closed or the childcare provider is unavailable due to COVID-19 precautions
The employee is experiencing “any other substantially similar condition” as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and Secretary of Labor
How Much Emergency Paid Sick Leave is an Employee Entitled To?
Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to a number of hours equal to the number of hours the employee works, on average, over a 2-week period. Employees with varying schedules have their hours calculated as with expanded FMLA. Paid sick leave ceases on the next scheduled work shift following the termination of the need for leave. The employer cannot require the employee to use other paid leave provided by the employer before the employee uses emergency paid sick time. Paid sick time does not carry over from one year to the next and is not paid out upon separation from employment.
How is Sick Leave Paid?
Sick leave related to the employee’s own symptoms or quarantine is paid at the greater of the employee’s regular rate of pay or the applicable federal, state or local minimum wage, but is capped at $511 per day and $5110 in the aggregate. Sick leave related to care for others or because the employee employee is experiencing “any other substantially similar condition” is paid at 2/3 of the employee’s regular rate of pay or the applicable federal, state, or local minimum wage, whichever is greater, capped at $200 per day and $2,000 in the aggregate.
Are There Notice Obligations?
Yes. A model notice will be issued by the Secretary of Labor by next week which employers must post on their premises in a conspicuous place where notices are customarily posted. Employers may also require employees to follow “reasonable notice procedures” to continue receiving paid sick time.
What About Other Applicable State or Local Laws?
The Emergency Paid Sick Leave law does not diminish the rights or benefits that employees are entitled to under other federal, state or local laws, collective bargaining agreements, or existing policies.
Anything else?
Employers cannot require that the employee search for or find a replacement in order to use emergency sick time.
Employers cannot discharge, discipline, or discriminate against any employee who takes emergency paid sick leave and has filed a complaint or proceeding related to the Act or testified in such proceeding. Any employer who does so will be considered to have violated the anti-retaliation provisions of the FLSA and be subject to applicable penalties.
Employers found to have violated the Paid Sick Leave law will be considered to have failed to pay the minimum wage in violation of the FLSA and will be subject to applicable penalties.
Like with the expanded FMLA, employers who are signatories to a multiemployer collective bargaining agreement have a special provision.
The Secretary of Labor is expected to issue additional guidelines by April 2, 2020.
New York State Legislation
Who is Eligible for NY State Emergency Sick Leave?
Employees subject to a mandatory or precautionary order of quarantine or isolation issued by NY State, the Department of Health, local board of health, or any governmental entity authorized to issue an order due to COVID-19 are eligible for sick leave. Employees who are subject to such quarantine or isolation because they traveled to a country where the CDC issued a level 2 or 3 travel notice are not eligible for paid sick leave or the other statutory benefits if they were provided with the travel health notice and notice that they would be ineligible for such benefits prior to such travel. Such employees may only use the pre-existing leave provided by their employer or unpaid sick leave, if such paid leave is exhausted. This exception does not apply if the travel was taken as part of employment or at the direction of the employer. Employees who are asymptomatic or who have not been diagnosed with a condition and who are physically able to work while under quarantine/isolation through remote access or other means are also not eligible for paid leave.
What Leave is Provided?
The NY legislation provides a combination of employer paid leave, disability leave, and paid family leave, depending on the employer’s number of employees as of January 1, 2020. This leave is in addition to any paid sick leave that the employee already receives under the employer’s policies. The legislation does not diminish or impair any rights or benefits included in collective bargaining agreements.
Employers with Ten or Fewer Employees:
Employers with Net Income of One Million Dollars or Less in Prior Tax Year: Unpaid sick leave until the termination of any mandatory or precautionary order of quarantine or isolation due to COVID-19. During this period of quarantine or isolation, the employee will be eligible for paid family leave and disability leave benefits.
Employers with Net Income of Greater than One Million Dollars in Prior Tax Year: At least 5 days of paid sick leave, and then unpaid leave until the termination of the quarantine or isolation. After the 5 days of paid sick leave, the employee is eligible for paid family leave and disability leave benefits.
Employers with 11 – 99 Employees: At least 5 days of paid sick leave, and then unpaid leave until the termination of the quarantine or isolation. After the 5 days of paid sick leave, the employee is eligible for paid family leave and disability leave benefits.
Employers with 100 or More Employees: At least 14 days of paid sick leave during the mandatory or precautionary order of quarantine or isolation.
Public Employers: At least 14 days of paid sick leave for employees of the state, a county, city, town or village, a school district, board of cooperative educational services, vocational education and extension board or school district, any governmental entity operating a college or university, public improvement or special district including police or fire districts; public authority, commission or public benefit corporation; any other public corporation, agency, instrumentality or unit of government which exercises governmental power under the law of the state.
Who is Eligible for Disability and Paid Family Leave?
“Disability” under this law means “any 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 the quarantine or isolation order “when the employee has exhausted all paid sick leave provided” by the employer under the act. “Family leave” for the purposes of this law means “any leave” taken from work when the employee is subject to the quarantine or isolation order or has to provide care for a minor dependent child of the employee who is subject to the quarantine or isolation order.
How Does the Provision of Paid Family Leave and Disability Leave Operate?
Unlike in other contexts, short-term disability and family leave may be payable concurrently, without any waiting period, beginning on the first full day of an unpaid period of mandatory or precautionary order of quarantine or isolation. The maximum amount of paid family leave would be $840.70 per week. Additionally, unlike standard short-term disability, which is capped at $170 per week, the amount of disability for quarantine/isolation purposes is calculated by subtracting the maximum paid family leave benefit from the employee’s total average weekly wages; capped at $2,043.92 per week. The mandatory or precautionary order itself is sufficient proof to support the claim for disability and paid family leave benefits.
Does the Employee Have Return to Work Rights?
Yes. Upon returning to work following leave taken under this act, the employee must be restored by the employer to the position of employment held prior to the leave with the same pay and other terms and conditions of employment. Employees are protected against discharge, threats, penalties, discrimination and retaliation because they have taken leave. However, the statute also makes clear that it does not prohibit any personnel actions which would have been taken regardless of the request or use of leave under the act.
What About the Impact of the Federal Families First Act?
The NY State law provides that if the federal government enacts legislation related to paid sick leave or employee benefits for COVID-19 reasons, then the NY law shall not be available to an eligible employee unless the NY legislation would have provided sick leave or benefits in excess of the benefits provided by the federal government’s legislation. In those instances, the employee can claim the sick leave and benefits pursuant to the NY law in the amount that is the difference between the benefits available under the NY law and any benefits provided by federal law. The largest impact of the NY law will therefore be felt by employers with 500 or more employees, who are exempt from providing paid sick leave and paid FMLA leave under the Families First Act. Those employers would, however, be required to comply with the NY legislation.
When do these Quarantine and Isolation-Related Requirements go Into Effect?
March 18, 2020.
Anything Else to Know?
The Commissioner of Labor is expected to issue emergency regulations to clarify the scope of this legislation. Additional regulations will also be forthcoming in June to stabilize claims under the law to prevent insurers from disproportionate adverse risks. The bill also provides that an employee seeking unemployment benefits due to the closure of an employer for a reason related to COVID-19 or due to a mandatory order of a government entity will not be subject to the standard waiting period for benefits.
Takeaways
Depending on the size of the employer and the reason for covered leave, the interplay of the new federal legislation, New York State’s Act, and already applicable local sick time legislation may be complex. Employers who have employees who need leave for any reason which may be covered by these laws should take immediate steps to ensure they are complying with the leave provisions and consult with counsel for any questions. Employers may also consider issuing notice to employees about these new entitlements to encourage compliance with permissive orders of quarantine or ease employee concerns related to childcare issues. If you have any questions regarding compliance with the new laws or require assistance drafting guidance for staff, please contact Kristina T. Grimshaw at kgrimshaw@fglawllc.com, Amanda Baker at abaker@fglawllc.com, or Tonianne Florentino at tflorentino@fglawllc.com.
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