Paid Leave and Coronavirus — Part V: UPDATE: Governor Cuomo Signs COVID-19 Leave Bill, but Tables Long-Term Paid Sick Leave Proposal, For Now

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Seyfarth Synopsis: Governor Cuomo has signed the bill requiring New York employers to provide leave for certain employees affected by COVID-19.  But the portion of the bill providing for statewide paid sick leave has been postponed.

On March 17, 2020, Governor Andrew M. Cuomo announced a “three-way agreement” with the State Legislature on a bill “guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19.” When he made the announcement, the bill contained two main components: COVID-19 benefits and long-term statewide mandatory paid sick leave.

On March 18, the Governor signed the bill, but contrary to the announcement a day earlier, it includes only the COVID-19 related paid and unpaid leave benefits and does not include long-term paid sick leave benefits.  It appears that the paid sick leave provisions will be introduced later this year in connection with the State budget.

The law takes effect immediately. Below is a synopsis of its provisions. In addition, the State has issued FAQs, an employee fact sheet/notice, an employer fact sheet/notice on a special website, and guidance for local health departments, all of which help clarify some of the statutory ambiguities.

Leave for Those Quarantined or in Isolation Due to COVID-19

Overview

The law provides for job protected paid sick and unpaid leave, as well as an expansion of the state’s paid family leave and disability benefits, to certain employees who are “subject to mandatory or precautionary orders of quarantine or isolation” related to COVID-19. 

• Employers with 10 or fewer employees and a net income of $1 million or less: Must provide unpaid sick leave for the entire period of quarantine or isolation, and employees will be eligible for New York Paid Family Leave ("PFL") and statutory disability benefits.
• Employers with 10 or fewer employees and a net income greater than $1 million: Must provide 5 days of paid sick leave, and unpaid leave for the remainder of the quarantine or isolation. After exhausting the 5 days of paid sick leave, employees are eligible for paid family leave and disability benefits.
• Employers with 11-99 employees: Must provide at least 5 days of paid sick leave, and unpaid leave through the end of the period of quarantine or isolation. After 5 days of sick leave, employees are eligible for paid family leave and disability benefits.
• Employers with 100 or more employees and all public employers: Must provide at least 14 days of paid sick leave.

As confirmed in the FAQs, the benefits provided are in addition to any paid sick leave or other accruals that employers already provide to employees.

Based on the State’s guidance for local health departments, the following would determine when an employee is subject to a “mandatory or precautionary order of quarantine or isolation.”  (The law also gives the New York Department of Labor the ability to issue guidance on these points, although it has not done so yet.)

• Mandatory Quarantine:  Applicable where (1) a person has been in close contact (6 ft.) with someone who is positive but is not displaying symptoms for COVID-19; or (2) a person has traveled to China, Iran, Japan, South Korea or Italy and is displaying symptoms of COVID-19.
• Mandatory Isolation:  Applicable where a person has tested positive for COVID-19, whether or not displaying symptoms. 
• Precautionary Quarantine:  Applicable where a person (1) has traveled to China, Iran, Japan, South Korea or Italy while COVID-19 was prevalent, but is not displaying symptoms; or (2) had proximate exposure to a positive person but has not had direct contact with a positive person and is not displaying symptoms. 

 An employee who is “deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while” under a quarantine or isolation order (e.g., through remote work) is not eligible for paid sick or additional PFL or disability benefits.  In addition, if an employee is caring for a child whose school is closed for preventative social distancing, but not due to a quarantine order, then leave under the new law would not be available.  In the same vein, it is unclear whether employers subject to Executive Order 202.7 (which, as of this writing, is the most recent Executive Order issued on temporary closures of workplaces) must provide paid sick leave pursuant to this law.  However, it is likely considered a preventative closure, which, based on the State’s FAQ concerning a school closure, it is likely the leave would not be available.

According to the FAQs, an employee may take leave pursuant to a quarantine order which was put in place prior to the passage of the law, but it is unclear whether leave that was already taken must be paid retroactively.

Exception for Voluntary Travel to Affected Regions

The law provides an exception to the foregoing mandate where (a) the employee traveled to a level-two or three country as designated by the CDC,[3] (b) the travel was not part of the employee’s employment/directed by the employer, and (c) an employee who, by virtue of their personal travel, remains ineligible for specific COVID-19 leave can apply employer-provided accrued leave or take unpaid sick leave for the duration of the quarantine. Employers should consider providing notice to employees of this restriction.

Expansion of PFL and Disability Benefits

The law expands the definitions of “family leave” under the State’s PFL and Disability laws to include COVID-19-related uses for employers with fewer than 100 employees.  “Family leave” includes leave taken by an employee from work when subject to a quarantine or isolation order, or to provide care for a minor dependent child who is subject to a quarantine or isolation order. The definition of “disability” now similarly includes an employee’s inability to perform the regular duties of their employment or duties offered by an employer as a result of a quarantine or isolation period, upon exhausting sick leave. Additionally, the disability waiting period will be waived for these purposes.

Although the law does not provide that employees may take leave in connection with a child’s school closure, the FAQs state that PFL may be available to an employee whose child’s school was closed due to a “mandatory or precautionary quarantine or order of isolation issued by the State, department of health, local board of health, or government entity.”

Disability and PFL benefits may be payable concurrently to eligible employees upon the first full day of the unpaid period of a quarantine or isolation order, up to a maximum of $840.70 in PFL and $2,043.92 in disability benefits per week. The maximum weekly benefit for disability is the difference between the maximum weekly family leave benefit and the employee’s total average weekly wage from each covered employer, up to the maximum of $2,043.92.

Unemployment Insurance

The law waives the waiting period for unemployment benefits due to a business closure for reasons related to COVID-19 or a mandatory order to close the employer.

Job Protection

The law also provides protections for employees returning to work following COVID-19-related leave.  An employee must be restored to the position held prior to any leave, with the same pay and other terms and conditions of employment.  It also prohibits discrimination or retaliation against employees who have taken leave. 

Interplay with Federal Leave Law

The leave provisions in the new law are not available unless they are in excess of  the benefits provided by the federal Families First Coronavirus Response Act (“FFCRA”), which was enacted on March 18, 2020 and goes into effect on April 2, 2020 (or, at the latest, April 3).  If the State law would provide an employee with more leave than FFCRA, then the New York employee would be able to receive the greater New York leave benefits.

The New York law appears to be more generous than FFCRA in two respects:  (1) it applies to more employers, and (2) in some instances it provides for more leave. As to the first, FFCRA’s provisions on paid sick time and paid family medical leave are not applicable to private employers with 500 or more employees. Thus, any New York State employers with 500+ employees would be required to provide only the benefits set forth under the New York law. Employers that are subject to both the FFCRA and the New York law (i.e., they have fewer than 500 employees) should anticipate potential complications when assessing how to coordinate federal and state leave mandates related to COVID-19 absences.

As to the second, if  a New York employer has more than 100 employees but fewer than 500, then it will be required to provide benefits under both laws.  In that situation, FFCRA calls for 80 hours of paid leave, while the New York law calls for 14 days.  Therefore, the employee would be entitled to approximately four additional days (or the equivalent in hours, depending on the employee’s regularly scheduled workday). 

Employer Takeaways:

In addition to consulting the text of the law and the State’s published guidance materials, here are some steps for employers to consider:

• Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.
• Review existing workplace policies relating to a host of issues, including travel, work from home, paid sick leave, paid family leave and other leave policies, and assess the potential effect of the new New York legislation on those policies.
• Consider issuing a separate policy addressing sick leave, paid family leave, and/or disability benefits for employees subject to mandatory or precautionary orders of quarantine or isolation related to COVID-19. Any such policy should also include notice of the travel health prohibitions and the limitations for benefits if such travel is undertaken by the employee.
• Monitor updates in connection with the long-term paid sick leave proposal.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with HR 6201 and paid leave requirements generally. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

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[2] Today, across 41 federal, state, and local jurisdictions, there are 43 private employer-provided paid time off mandates either in effect or scheduled to go into effect in the coming months (this list includes the new Colorado COVID-19 emergency paid sick leave mandate): (1) The Federal Contractor PSL law; (2) Arizona; (3) California; (4) Colorado (temporary law in response to Coronavirus) (5) Connecticut; (6) Maine (PTO law); (7) Maryland; (8) Massachusetts; (9) Michigan; (10) Nevada (PTO Law); (11) New Jersey; (12) Oregon; (13) Rhode Island; (14) Vermont; (15) Washington; (16) San Francisco, CA; (17) Washington, D.C.; (18) Seattle, WA; (19) Long Beach, CA (hotel-specific law); (20) SeaTac, WA (hospitality and transportation industry-specific law); (21) New York City, NY; (22) Los Angeles, CA (1 general law 1 hotel-specific law); (23) Oakland, CA; (24) Philadelphia, PA; (25) Tacoma, WA; (26) Emeryville, CA; (27) Montgomery County, MD; (28) Pittsburgh, PA (effective date was March 15, 2020); (29) Austin, TX (delayed; ongoing litigation); (30) Santa Monica, CA; (31) Minneapolis, MN; (32) San Diego, CA; (33) Chicago, IL; (34) Berkeley, CA; (35) Saint Paul, MN; (36) Cook County, IL; (37) Duluth, MN; (38) San Antonio, TX (delayed; ongoing litigation) (39) Westchester County, NY (1 sick leave law, 1 safe leave law); (40) Dallas, TX; and (41) Bernalillo County, NM (PTO law). This list does not include state and local paid family and medical leave programs.

[3] For up-to-date information about travel advisories, we recommend visiting the U.S. State Department website at https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html.