30

November, 2020

Three Key Employment Items to Address Before the New Year

By Tracey I. Levy and Alexandra Lapes

As the new year quickly approaches, employers should aim to update their policies and practices to stay legally compliant and prepare their workforce for the new year.   In particular, employers in New York, Connecticut and New Jersey need to ensure they are complying with harassment prevention training requirements, have updated their sick and safe leave and their harassment and discrimination prevention policies, and have updated their procedures to meet new notice, payroll, and tracking requirements.

1. Training

This is year two for meeting the annual New York State and New York City interactive sexual harassment prevention training requirements.  Employers that have not yet conducted training this year should make that a priority before year-end to remain in compliance at both the state and city levels.  Note, for new hires, New York City requires employers with 15 or more employees to conduct initial training within their first 90 days, and all other New York employers are subject to the state’s requirement for training to be conducted as soon as practicable after hire.  When conducting the training, employees must be provided with a copy of the employer’s sexual harassment prevention policy, training materials, and a notice of employee rights.

Connecticut employers are also required to conduct sexual harassment prevention training, and the Connecticut Commission on Human Rights and Opportunities recently extended that deadline to January 1, 2021.  Employers with three or more employees must train all their employees, while the smallest employers need only train those in a supervisory role.  Meeting this training obligation will satisfy an employer’s legal requirements for the next ten years as to existing employees, but on an ongoing basis, new hires need to be trained within six months after they are hired.

2. Policies

Employers should review and revise their employee handbook policies on sick and safe leave, harassment prevention, and anti-discrimination, to ensure compliance with recent changes in the law.

  • Sick and safe leave
    • New York State adopted a state-wide paid sick leave law (in addition to the pandemic-related paid leave law), that requires employers to provide up to seven days of paid sick leave per year, depending on the size of the employer.
    • New York City expanded its paid sick leave law to mirror and expand upon the state law provisions. The amendments will require New York City employers to update their paid leave policies to reflect the new updated accrual amounts and eliminate certain eligibility and waiting period requirements, as well as to add “domestic violence” as an additional basis for taking leave.
    • While Westchester County has its own paid sick leave law, the county has posted a notice on its website that the state law now governs paid leave and employers should refer to the state law for their rights and obligations. Note that there is no similar notice with regard to the Westchester County paid safe leave law, and employers should therefore assume that the safe leave law’s separate paid leave requirements are still in full force.
  • Harassment and discrimination prevention
    • Employers in New York State should update their harassment prevention policies to reflect the State Human Rights Law’s new definition of sexual harassment.
    • New York State employers must also update their policies to provide employees with appropriate notice of their rights and remedies with regard to reproductive health decisions, including a prohibition against discrimination and retaliation based on an employee’s or an employee’s dependent’s reproductive health decision-making.

3. Notice Requirements

The following payroll and tracking procedures must be put in place, in addition to meeting new notice and posting requirements.

  • Payroll and Tracking
  • New York State employers must:
    • Maintain paid sick leave records for no less than six years; and
    • Be prepared to timely provide employees with a summary of the amount of sick leave accrued and used upon request.
  • New York City employers must additionally provide:
    • Accrual, usage, and paid sick leave balance information to employees each pay period;
    • Written notice by January 1, 2021 (see notice link here) of employees’ paid sick leave rights at hire and to current employees of organizations with 100 or more employees, and conspicuously post that notice; and
    • Retain compliance records for at least three years.
  • Westchester County employers must additionally provide:
    • A Notice of Employee Rights and a copy of the County’s Safe Leave Law to all new hires; and
    • Display the required Safe Time poster both in English and Spanish, in a conspicuous location.
  • New Jersey employers with 10 or more employees must ensure they have:
    • Updated their payroll statements to ensure that they each specify: the employee’s gross and net wages; the employee’s rate of pay; and, for hourly employees, the number of hours worked during the pay period.
  • Job Protection
  • New Jersey employers must have conspicuously posted (as of April 1, 2020), two notices regarding employee misclassification.
  • Connecticut employers must provide information on the illegality of sexual harassment and remedies available to new hires within three months of their start date and send this information to each employee.
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30

September, 2020

NYC Amends Sick and Safe Time to Coordinate with NYS Leave; Employer Policies Likely Need to Be Updated

By Tracey I. Levy and Alexandra Lapes

Effective September 30, 2020, New York City is expanding its paid safe and sick time law (New York City’s Earned Safe and Sick Time Act or ESSTA), to bring the ESSTA in line with New York State’s statewide paid sick leave mandate, which is also set to take effect on September 30, by requiring more employers to provide paid leave to employees, and imposing some additional requirements.  More specifically, under the revised ESSTA:

  • employers with one to four employees are required to provide five days (40 hours) of paid safe/sick leave per calendar year if the employer had a net income of one million dollars or more during the previous tax year; and
  • employers with 100 or more employees must provide a total of seven days (56 hours) of paid safe/sick leave per calendar year.

The revised ESSTA also removes the waiting period for newly hired employees to be able to utilize safe/sick time (previously 120-days post-hire) and removes the requirement that an employee work 80 hours in a calendar year to be eligible for safe/sick leave.   Significantly, employees can utilize safe/sick time as it is accrued.  There is a phase-in period for the balance of 2020, in that employers that are required to provide additional leave under the revised law can delay those additional leave entitlements until January 1, 2021.

The revised ESSTA imposes new notice and record-keeping requirements, as well as some fee-shifting to employers.  In particular, it provides that if an employer requests documentation to support that an absence for more than three consecutive work days was used for an authorized purpose, the employer must reimburse the employee for all reasonable costs or expenses incurred for the purpose of obtaining that documentation.  Additionally, employers must provide written notice of employees’ rights under the law upon hire and must conspicuously post that notice in the employer’s place of business, as well as provide current employees with notice of their rights no later than October 30, 2020.  For each pay period, employers must provide the amount of safe/sick time accrued and used during that pay period and an employee’s total balance of accrued safe/sick leave on their pay stub or other form of pay period documentation.  Employers are now required to retain records of complying with these requirements for at least three years.

Other notable additions to the ESSTA include explicitly adding “domestic violence” as an additional basis for taking safe leave, and expanding the definition of “adverse action” and other elements of the law’s retaliation protections.  Finally, the ESSTA adds some more teeth by granting the Department of Consumer and Worker Protection (Department) the ability to open an investigation on its own or after receiving a complaint, and removing the requirement that the Department first attempt to resolve a complaint through mediation.  The person or entity under investigation must respond and provide any information requested to the Department within 14 days (previously 30 days) of receiving notice of being under investigation. Additionally, corporate counsel is granted enforcement rights to initiate court proceedings and bring civil actions for pattern or practice violations. Employers found liable for any official or unofficial policy or practice of not providing or refusing to allow the use of safe/sick time will be subject to $500 in damages per employee, as well as additional damages of up to $15,000 for an unlawful practice or pattern violation.

These changes are significant enough as to warrant revisions to existing safe/sick time policies for most New York City employers, particularly with regard to the changes in accrual amounts, removal of waiting periods, expanded definitions, and the new employer reimbursement obligations for employees securing documentation to substantiate their absence.

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25

September, 2020

DOL Revises Regulations to the Families First Coronavirus Response Act

By Alexandra Lapes and Tracey Levy

Effective as of September 16, 2020, the United States Department of Labor (“DOL”) issued revised regulations to its temporary rule issued on April 1, 2020, implementing provisions of the Families First Coronavirus Response Act’s (“FFCRA”) paid sick leave and paid family leave mandates, to clarify workers’ rights and employers’ responsibilities, after a United States District Court for the Southern District of New York (“District Court”) struck down several portions of the temporary rule as invalid on August 3, 2020.

Specifically, the District Court ruled four parts of the DOL’s temporary rule regarding the FFCRA paid leave provisions were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work available from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the expanded definition of “health care provider” and whom an employer may exclude from being eligible for FFCRA leave; and (4) that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

As previously reported in our Law Blog, the Emergency Paid Sick Leave Act (“EPSLA”) grants paid sick leave to employees who are unable to work or telework due to a need for leave because of any of six COVID-19-related criteria. Similarly, the Emergency Family and Medical Leave Act (“EFMLEA”) applies to employees unable to work or telework due to a need for leave to care for a child due to a public health emergency.

The DOL’s revisions reaffirm and provide further explanation of the following:

• Employees may take FFCRA leave only if work would otherwise be available to them.
The DOL’s April 1, 2020 rule stated an employee was entitled to FFCRA leave only if the qualifying reason was the actual reason (or the but-for cause) why the employee was unable to work, and therefore did not apply if an employee was furloughed or was unable to work because an office was closed. The District Court held the work-availability requirement was invalid because the DOL had only explicitly applied it to three of the six qualifying reasons for FFCRA leave.

In response, the DOL has reiterated that an employee may take sick leave or expanded family and medical leave only to the extent that a qualifying reason is the sole (“but-for”) reason the employee is not working. The DOL extended that standard to all qualifying reasons for FFCRA leave. The DOL explained that removing the work-availability requirement would not serve the purpose of the FFCRA paid leave provisions, because if there is no work to perform, there would be no need to discourage potentially infected employees from coming to work. However, the DOL has made clear that there must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.

• Where intermittent FFCRA leave is permitted by the DOL’s regulations, an employee must obtain employer approval to take FFCRA leave intermittently.
The DOL also confirmed its original position that employer approval is needed to take intermittent FFCRA leave. The District Court had struck down the employer-approval requirement as not adequately explained, so the DOL responded by providing more of a rationale for this requirement.
Tackling anticipated confusion for employees who have children in school on a hybrid schedule, the DOL clarified that the employer-approval requirement does not apply to employees who take FFCRA leave to care for their children on remote learning days, provided the child is attending school on the days that the school is open to the child. For FFCRA purposes, the DOL has reasoned that, if the remote learning days are determined and directed by the school then each such day constitutes a separate qualifying event for FFCRA leave, and such absences are not deemed to be “intermittent”. Employer consent would still be required, though, if an employee’s child’s school is closed for multiple days, and the employee seeks to use FFCRA leave on only some of those days (an intermittent basis) while the school is closed.

Similarly, the DOL explained that an employee is not eligible for FFCRA leave if the employee elects remote schooling for the employee’s child when in-person attendance would otherwise be possible. However, if an employee’s child is under a quarantine order or has been advised by a health care provider to self-quarantine, then FFCRA leave would be available, and if the employee asks to use FFCRA leave on only select days that the child is quarantined at home, then employer approval would be required for the leave to be taken intermittently.

The DOL’s revisions also amend and clarify that:

• The definition of “healthcare provider” includes only employees who (1) meet the definition of that term under the FMLA regulations and (2) who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
Under the FFCRA, employers are allowed to exclude employees who are “healthcare providers” from FFCRA leave coverage, recognizing these employees’ presence at work is essential in preventing disruptions to the health care system’s capacity to respond to COVID-19. The District Court struck down the DOL’s original definition of “healthcare provider” as being overly broad because it excluded employees in medical services who were not directly providing patient care. The DOL accordingly adopted a narrower definition of the term in the revised regulations that focuses on whether the employee is providing services that are integrated with and necessary for patient care.

• Employees must provide required documentation supporting their need for FFCRA leave to their employer as soon as practicable.
Under the FFCRA, employees are required to provide notice to receive paid sick leave after the first workday of leave, or for expanded family and medical leave, as soon as practicable, when the necessity for such leave is foreseeable. In the temporary rule issued by the DOL, it required this documentation be submitted “prior to” taking FFCRA leave, which the District Court held was inconsistent with the statute’s notice requirements. The DOL amended the new regulations to clarify that notice be provided as soon as practicable, which may be at the same time an employee requests leave, but the DOL recognized that is not necessarily always the case.

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21

May, 2020

Working Our Way to Normalcy: A Tri-State Guide to Reopening Your Business

By Tracey Levy and Alexandra Lapes

With the goal of getting employees back to work safely while ensuring business continuity, and in compliance with local, state, and federal laws, employers should consider the following key measures to take as New York, New Jersey, and Connecticut permit more businesses to reopen during the COVID-19 pandemic.

1 – Closely follow your local reopening status and what level your business falls into within the phases of reopening

In New York State, Governor Cuomo issued the New York Forward plan, a guide to reopening businesses in New York, which outlines that businesses can reopen in phases based on each region meeting specific health metrics.  As of May 20, 2020, seven regions (Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier, and Western New York) are allowed to reopen and begin phase one of reopening.  See here for a breakdown of progress on the metrics by region.

Geographic region is only the first threshold in New York, as the state also is phasing reopening by industry.  The state provides a reopen “lookup tool,” where businesses in specific industries can determine whether they are eligible to reopen.   In order to operate, employers must comply with all safety guidelines for their particular industry.  All New York employers (including essential businesses) must also, as a condition of being open:

    1. affirm that they have read and understand their obligations to operate in compliance with New York State guidance – and submit that affirmation of compliance online; and
    2. develop a business safety plan, for which the state has issued a business safety plan template. While the business safety plan does not need to be submitted to the state, it must be posted in a conspicuous location in the workplace and made available to the state Department of Health or local health or safety authorities in the event of an inspection.

The reopening lookup tool contains specific guidance for certain industries, and covered employers must also affirm compliance with those industry-specific standards.

Employers should consult the NY Forward website at www.forward.ny.gov  and applicable Executive Orders at www.governor.ny.gov/executiveorders  periodically or whenever notified of the availability of new guidance.  Employers can also visit Empire State Development’s website for frequently asked questions on how the New York Forward reopening plan impacts their business.

For New Jersey employers, on May 18, 2020, Governor Murphy announced a six-principle plan to restart New Jersey’s economy.  While New Jersey’s stay-at-home order is still in effect until further notice, the Governor announced New Jersey is in phase one of the six-principle plan but stated that a coronavirus vaccine must be widely available before New Jersey fully reopens to the “new normal.” New Jersey created a reference tool for local establishments that are open and cooperating with state guidelines, see here.

Connecticut is also taking a gradual approach, which began May 20, 2020, for those businesses that see a sustained 14-day decline in hospitalizations, have the adequate testing capacity, have a contact tracing system in place, and have procured sufficient personal protective equipment (“PPE”). Businesses eligible to reopen as of May 20 are:

  • Restaurants (outdoor only, no bar areas);
  • Offices (continue WFH where possible);
  • Museums, zoos (outdoor only);
  • Remaining retail;
  • Outdoor recreation;
  • Personal services (hair); and
  • University research.

They join already open businesses such as manufacturing, construction, real estate, utilities, essential retail, childcare, and hospitals.  Industry-specific guidelines for reopening are available here.  All businesses must self-certify online prior to opening that they are complying with safety measures.  Connecticut’s “Stay Safe, Stay Home” and all other related safety measures otherwise remain in effect, with all nonessential workers directed to work from home, and social and recreational gatherings of more than five people prohibited. To stay up-to-date on Connecticut’s guidance to reopen see here, and for answers to frequently asked questions, see here.

Additional resources are available for safety information, and guidelines at:

2 – Prepare your workplace and take necessary protective measures

All businesses should take proactive measures to ease employees’ fears of returning to work and communicate new policies, procedures, and practices specific to their workplace.  While every workplace will differ, consider the following proactive measures:

  • Prepare a workplace safety plan in compliance with federal, state, and local law. A workplace safety plan should address how the business plans to:
    • physically distance employees to ensure six feet between personnel, including limiting in-person gatherings, posting social distance markers using tape in common areas, limiting in-person meetings as much as possible and holding essential meetings in well-ventilated and well-spaced locations, limiting contact with customers, and considering shift changes or alternating lunch breaks if appropriate to the industry or business; and
    • implement protective measures for employees, including health screening before employees can return to work and subsequent daily health assessments, an exposure-response plan, maintaining adequate supply of face coverings for employees, complying with CDC hygiene and sanitation requirements with a log of who will be cleaning what and the date/time/scope of cleaning, providing hand sanitizers, soap, and paper towels to employees and those entering the workplace, and having a plan for cleaning, disinfecting, and contact tracing in the event an employee tests positive for COVID-19.
  • Communicate the safety plan to all employees. Through signage, advance communications, and ongoing training, ensure all employees and visitors in the workplace are aware of the organization’s social distance and safety protocols.

3 – Determine whether employees are eligible for modified work arrangements or accommodations, FFCRA leave, or other benefits and apply and redefine your policies fairly

Employers should review their workplace policies and update them as appropriate to address COVID-19 related personnel issues such as leave entitlements, teleworking or flexible work arrangements, the continuation of benefits, and accommodations for vulnerable employees.  In addition to the Families First Coronavirus Response Act leave, which remains in effect for covered employers until December 31, 2020, employees in New York, New Jersey, and Connecticut may also be entitled to paid sick leave for COVID-19 related reasons.  See our recent issue of Takeaways and prior HR Strategy blog postings for more information on state-specific COVID-19 leave entitlements.

When restoring employees to work, employers should develop a methodology that applies consistent and nondiscriminatory criteria to determine the rehire order.  Be sure to notify state unemployment agencies of recalled workers, whether rehired or not, as employees forfeit their eligibility for continued unemployment benefits if they decline an offer of reinstatement because they are making more from unemployment.

Some employees who fall into a high-risk category for COVID-19 may request to remain on leave or continue working remotely as a reasonable accommodation.  Employers need to give such requests due consideration, as with any other accommodation request.

4 – Check for additional guidance and shifting requirements

These remain primarily unprecedented times, and the legal landscape for employers is shifting continuously.  Checking the available government links periodically is prudent, and employers should consider getting legal advice before taking employment actions.

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20

March, 2020

Federal, NYS Emergency Sick Leave Laws Protect Employees Impacted by COVID-19, Impose Substantial New Obligations on Many Private Employers

By Tracey I. Levy, Esq.

  • [Ed. Note 4/3/20: updated guidance from the NYS DOL has made clear that the paid sick leave requirement, discussed below, with respect to employers with 100 or more employees is 14 calendar days, not working days as a prior version of the DOL guidance had indicated.  Therefore, employers with 100-499 employees must provide the same duration of emergency paid sick leave under both federal and New York State law.]

On March 18, 2020 both the federal government and New York State adopted emergency legislation designed to provide some degree of salary protection to employees who are unable to work because of quarantine and isolation orders and certain precautionary measures taken in response to COVID-19.  These laws offer government funding to support employers in the form of tax credits (at the federal level) and by tapping into the existing disability and family leave insurance benefit pool (at the state level), but also impose substantial new requirements on employers that at least involve an initial outlay of salary payments to employees.

Federal Emergency Paid Sick Time

The federal government has taken a two-pronged approach to provide paid time off and job guarantees for employees who are unable to work due to health, child care or public safety reasons stemming from COVID-19.  More specifically, all private employers with 500 or fewer employees and many public employers are required to provide their employees (even new hires) with up to two weeks (80 hours) of paid sick time if an employee is unable to work due to one of six situations:

1.The employee is subject to a government-issued quarantine or isolation order due to COVID-19;

2. A health care provider has advised the employee to self-quarantine due to COVID-19 exposure;

3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;

4. The employee is caring for someone subject to a government-issued quarantine or isolation order;

5. The employee is caring for a child where the school or child care provider has closed or the paid care provider is unavailable due to COVID-19 precautions;

6. The employee is experiencing any substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Full-time employees are entitled to 80 hours of paid sick time, paid at their regular rate of pay up to a maximum of $511 per day for absences based on their personal condition (reasons 1 through 3 above) and two-thirds of their regular rate of pay, up to a maximum of $200 per day, for absences based on their care of others (reasons 4 through 6 above).  This paid sick time will not carry-over into next year, and unused amounts need not be paid out in the event of an employee’s termination.  Rather, all paid sick time ends immediately following termination of the emergency need.  Significantly, though, for employers that already offer some amount of paid leave time, an employer cannot require an employee to use other paid leave before claiming paid leave for a qualifying reason under this Emergency Paid Sick Leave Act.

Federal Emergency FML Leave

Following the initial two-week period of Emergency Paid Sick Leave, employers with 500 or fewer employees must permit employees to request up to twelve weeks of job-protected paid leave under the Emergency Family Medical Leave Expansion Act (“Emergency FMLEA”) [Ed. clarification 3/30/20: the first 2 weeks are unpaid under Emergency FMLEA but may run concurrently with Emergency Paid Sick Leave; up to 10 weeks of paid leave are then available] if the employee remains unable to work because the employee needs to care for the employee’s child under the age of 18 due to the closing of the child’s school or child care center or unavailability of the child’s regular paid child care provider for a COVID-19-related public health emergency as declared by a federal, state or local government authority.  In this limited childcare-related context, the Emergency FMLEA expands the federal FMLA, both in its coverage of every employer with 500 or fewer employees, and in its application to every individual who has been employed by such an employer for at least 30 calendar days.  It also provides that employees are to receive at least two-thirds of their regular rate of pay for this time off, based on their regular work schedule, to a maximum of $200 per day or $10,000 in aggregate.

Although the scope of covered employers, employees and qualifying reasons under the Emergency FMLEA, as well as the concept of paid leave, deviate substantially from employers’ existing obligations under the FMLA, other aspects of the FMLA with regard to providing requesting employees with notice of their leave rights, health insurance continuation, and job protection, are fully applicable in this context.  Employees cannot be discriminated or retaliated against for requesting or taking qualifying leave.  However, for Emergency FMLEA, employers with fewer than 25 employees can be exempted from the obligation to restore an employee to the same or equivalent job at the end of the leave period if the position no longer exists due to economic conditions or changes in operations that affect the individual’s employment, or as caused by a public health emergency during the period of leave.  To claim the benefit of this exception, the employer must have made reasonable efforts to restore the employee to an equivalent position, and for one year thereafter, the employer must continue to make reasonable effort to notify the employee if an equivalent position becomes available.

Federal Tax Credits

To pay for these substantial paid leave benefits, the federal law provides that employers may claim credits against taxes owed to the Internal Revenue Service each quarter equal to 100 percent of qualified sick leave wages and 100 percent of qualified family leave wages paid in the calendar quarter, up to the full amount of the taxes owed.  If the credit exceeds the taxes owed, then the excess is to be treated as an overpayment to be refunded to the employer.  The law also provides that sums paid as emergency paid sick leave or Emergency FMLEA leave are not to be considered “wages” for purposes of the federal tax law section 3221(a).  Finally, it should be noted that the tax credits are equally available to self-employed individuals to the extent they are unable to work because of qualifying sick or family leave reasons.

Limited Duration, Exceptions and Penalties Under the Federal Laws

Both Emergency Paid Sick Leave and Emergency FMLEA take effect by April 2, 2020 and end on December 31, 2020.  The laws both authorize the Secretary of Labor to issue regulations that exempt businesses with fewer than 50 employees where imposing the laws’ requirements would jeopardize the viability of the business as a going concern.  Health care providers and emergency responders also may opt out from the laws’ requirements.  Employers will be required to post a notice of rights under the Emergency FMLEA law, which the Department of Labor is supposed to be issuing within the next week.  Failure to comply and provide paid leave under the emergency paid leave laws will be considered a failure to pay minimum wages and will thereby be subject to the penalty provisions of the Fair Labor Standards Act.

New York State Emergency Paid Sick Leave

On the same day as the passage of the federal emergency paid leave laws, New York State passed its own emergency paid sick leave law, which takes effect immediately.  The New York State law is similarly comprised of two components – sick leave and extended paid leave – and, as with the federal law, it mandates that COVID-19-related sick leave days be provided in addition to any other paid leave benefit currently offered by the employers’ policies.  The New York State law also assures employees that, at the end of their leave, they will be returned to their job at the same pay, terms and conditions, and it prohibits employers from discriminating or retaliating against employees for requesting or taking leave under the law.  The law states that it does not preclude employers from taking any personnel action they would otherwise have taken had the leave not been requested or taken.  Despite these similarities, the New York State law differs in several material respects from the federal laws.

First, the state is not offering any tax credits or other reimbursement to employers for the sick leave component of the New York State law, but depending on their size and profitability, many employers will be required to provide some period of additional paid leave, as discussed below.  The extended paid leave benefit is to be administered through the existing mechanisms of New York State Short-Term Disability Leave (“STD”) and/or New York State Paid Family Leave (“PFL”), without the usual qualifying waiting period, and is thereby paid through employers’ current state-mandated STD/PFL insurance policies.

Second, New York State sick leave and STD are available only to employees who are unable to work (even remotely) because they are personally subject to a COVID-19-related order of protection or isolation (equivalent to category 1 under the federal Emergency Paid Sick Leave law).  PFL benefits may also be used in that context to provide a combined benefit.  Employees who are unable to work (remotely or otherwise) because they are caring for a minor dependent child who is subject to a COVID-19-related order of protection or isolation (which is a more limited version of category 4 under the federal Emergency Paid Sick Leave law) are also covered by the New York State law, but those individuals are only entitled to apply for benefits through the PFL program.

Calculating the Combined Federal and NYS Paid Leave Benefits

For any employee subject to a COVID-19-related order of protection or isolation whose regular salary equates to $511 or less per day and who works for an employer with 99 or fewer employees, the federal Emergency Paid Sick Leave law will fully supersede the New York State sick leave requirement.  Similarly, to the extent an employee is absent from work for a COVID-19-related reason other than a government-mandated quarantine or order of isolation, only the federal law will apply because the state law will be inapplicable.  In contrast, employers with more than 500 employees are fully subject to the New York State law requirements; the state provides no exemption for the largest employers.

There are several circumstances in which, depending on the size and profitability of the employer, an employee who is eligible for benefits under both laws may enjoy greater benefits under the state law than the federal law:

  • New York State-qualifying employees with a daily salary higher than $511 – these individuals are entitled to receive paid sick days under New York State law at their full, uncapped daily rate.
    • For employers which, as of January 1, 2020, had eleven to 99 employees, and smaller employers that had a net income greater than $1 million last year, five days of emergency sick leave must be paid at the employee’s regular base salary.
    • For New York State employers that had 100 or more employees as of January 1, 2020, 14 days of emergency paid sick leave at the employees’ regular base salary.
  • Employees who work for an employer with 100-500 employees – the New York State law literally mandates “at least fourteen days” of emergency paid sick leave. It appears, from the FAQs issued by the state Department of Labor, that this means 14 working days, which is more than the two full workweeks of pay provided under the federal law.  Therefore, at any salary level, these employees would be entitled to four more days of emergency paid sick leave under the state law than is provided by federal law. [See Ed. Note at top of this article]
  • Employees who are already subject to an order of protection or isolation or become subject to such before the federal law takes effect – because the New York State law has immediate effect, to the extent New York State employees already are subject to an order of protection or isolation or become subject to such an order prior to the federal law taking effect, they would be entitled to receive the full benefit provided under the state law and their eligibility for federal Emergency Paid Sick Leave would likely be determined looking forward from the effective date of the federal law. This may have the effect of entitling New York employees to the benefit of both paid New York State emergency sick leave and some amount of federal Emergency Paid Sick Leave, and we will need to await clarification from the state and federal Departments of Labor as to how to reconcile this overlap.

New York State Emergency Extended Leave

Once an employee has exhausted their federal and state emergency paid sick leave, the state law requires that they exhaust any other sick leave provided by their employer.  If they thereafter remain unable to work and are still subject to an order of protection or isolation, then they will be eligible to apply for both STD and PFL benefits for the duration of their time in quarantine or isolation.  Notably, although the New York State law uses the vehicle of the STD program, it has substantially enhanced the benefit threshold to an amount equal to an employee’s total average weekly wage, up to a maximum of $2,043.92 per week.  In addition, the state has made an exception to the PFL benefit program to permit the use of PFL in this context for an employee’s own condition, and to permit simultaneous receipt of benefits under both the STD and PFL programs.  As a result, when combined with the maximum PFL benefit of $840.70, eligible employees will receive a combined total weekly payment of $2,884.62, which may offer employees greater pay than the Emergency FMLEA benefit.

For any employee who is not personally under a quarantine or isolation order, but who needs to care for a minor child subject to such an order, the two weeks of federal Emergency Paid Sick Leave offers the same or a greater benefit (even at the $200 cap) than just applying for the NYS PFL benefit.  If the isolation order continues and care is required beyond those first two weeks, the Emergency FMLEA likely offers a greater benefit and will thereby supersede the New York State extended paid leave requirement for employers with 500 or fewer employees.

Challenging Times

These emergency paid leave laws represent uncharted territory from a federal law perspective, and the overlay with state laws presents interesting challenges.  The immediate effect of the New York State law and the realities of the COVID-19 response in New York State may necessitate taking employment actions without the benefit of further guidance from the Department of Labor.  While the above analysis highlights the key provisions of both laws and how they do or may intersect, employers are advised to seek legal advice to clarify their obligations before taking responsive action.

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