17

December, 2020

FFCRA Is Ending, But NYS Employers Still Have COVID-Leave Obligations

By Tracey I. Levy

The Families First Coronavirus Response Act (“FFCRA”), which provides up to two weeks of paid, job-protected sick leave to covered employees for a variety of COVID-related reasons, and additional leave for care of a child related to COVID, is scheduled to sunset on December 31, 2020. Presently, there seems to be limited legislative or executive effort to extend the law beyond that date, even as we remain in the throes of the pandemic. That means that, as of January 1, 2021, employees will no longer be eligible for FFCRA leave, any employee who is on leave as of December 31, 2020 will be ineligible for continued leave after that date, and employers who continue to grant employees leave for an FFCRA-qualifying reason will not be entitled to claim tax credits for paid COVID leave days subsequent to December 31. In a nutshell, the sunset clause means an end to any federal paid leave benefit or tax credit, and restoration to the way things were back in March 2020, before the pandemic.

While those consequences are relatively simple to explain, the interplay with New York State law makes things a bit more complicated. New York State passed its own COVID-related leave law, which took effect on the same day as the FFCRA. New York State’s law grants all employees COVID-related leave if an employee is personally subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19, provided the employee is not physically able to work remotely while under quarantine. Employees are disqualified from the NYS COVID-related leave benefit only if they are being quarantined for having traveled outside the U.S., for non-work-mandated reasons, to a country for which the employee was on advance notice of a level two or level three travel notice having been issued by the CDC. New York State’s COVID-related leave law has no sunset date; rather, the leave benefit is specifically tied to COVID-19 and therefore, for as long as employees are subject to COVID-related quarantine or isolation orders, they remain eligible for the benefits provided under the state’s law.

As we noted previously in the Summer 2020 issue of our newsletter, Takeaways, employees who are directed by a healthcare provider to quarantine or isolate can obtain a quarantine or isolation order by following a process jointly defined by the New York State Departments of Health and Labor to request such an order from their local health department. New York City had issued a standing order with various appendices that, when satisfied, would be deemed to meet the state law quarantine order requirement, but the city has since withdrawn that page from its website.

For those employees who meet the NYS eligibility criteria, employers must provide the following, depending on their profitability and the size of their workforce:

  • 14 calendar days of job-protected, paid COVID-related leave, at the employee’s regular rate of pay, if the employer has 100 or more employees;
  • 5 calendar days of job-protected, paid COVID-related leave, at the employee’s regular rate of pay, and an additional 9 calendar days of job-protected, unpaid leave, if the employer has 11 to 99 employees or has fewer employees but had a net profit of $1,000,000 or more last year; and
  • 14 calendar days of job-protected, unpaid COVID-related leave, for all other employers with 10 or fewer employees.

Employees are entitled to apply for New York State Short-Term Disability and Paid Family Leave benefits, simultaneously and without any waiting period, during the unpaid portion of their quarantine leave, and all COVID-related leave is in addition to, and gets used before, any paid time off the employee may have otherwise available under the employer’s paid leave policies or the new New York State paid sick leave law.  New York State provides no reimbursement or subsidy to employers for the paid sick leave benefits required under the law.

As a reminder, FFCRA also provided employees with partially-paid leave benefits, of varying duration, in the event they were caring for a child or family member who was quarantined due to COVID. New York State law has no similar provision. However, to the extent an employee meets the eligibility criteria for Paid Family Leave (having worked at least 20 hours per week for 26 consecutive weeks), if either (i) the employee’s child has been quarantined and the employee is unable to work remotely while caring for that child, or (ii) the employee is unable to work because the employee needs to care for a close family member who contracts COVID-19, the employee can submit a claim for job-protected Paid Family Leave and receive paid time off benefits under that program.

New York State employers must therefore continue to provide COVID-related paid sick leave benefits to their employees, where the eligibility criteria are met, and shoulder those benefit costs, for as long as we are facing COVID-19-related quarantine orders.

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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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