Author: Julie Bastian

Before joining Horton Law, I spent most of my legal career working as in-house counsel for a large privately-held global workforce solutions and business service company. I assist businesses with risk mitigation by analyzing their existing human resources policies and procedures and handling employment matters that come up. Nothing on the firm blog should be considered legal advice. If you need legal advice and think we can help, let me know!

April 27, 2020

New York Paid Sick Leave Law Applies to All Private Employers

On April 3, 2020, Governor Andrew Cuomo signed 2021 budget legislation that included sick leave for employees throughout New York. In addition to illnesses and injuries, the leave is available for circumstances related to domestic violence. Employees begin accruing sick leave on September 30, 2020, and may use it starting January 1, 2021. New York paid sick leave benefits vary based on the size of the employer.

The law only applies to private (non-governmental) employers. New York public entities, such as municipalities and school districts, are not covered.

Leave Requirements Depend on Business Size

“Small” Employers

Employers with up to 4 employees must provide employees with at least 40 hours of unpaid sick leave each year.

However, employers of this size who had net income over $1 million in the previous tax year must pay employees for this leave.

“Medium” Employers

Employers with between 5 and 99 employees must provide employees with at least 40 hours of paid sick leave each year.

“Large” Employers

Employers with 100+ employees must provide employees with at least 56 hours of paid leave each year.

Sick Leave Accrual

Employees are eligible to accrue sick leave at a rate of not less than 1 hour per 30 hours worked. Employees begin accruing Sick Leave on September 30, 2020, or upon hire after that.

Employers can provide all of the leave at the beginning of the year if they prefer.

When Can Employees Take New York Paid Sick Leave?

Eligible employees may take accrued sick leave for any of these reasons:

Mental or physical illness, injury, or health condition of either an employee or an employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time employee requests leave.
Diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventative care for either the employee or an employee’s family member.
Absences related to domestic violence, as described below.

Absences Related to Domestic Violence

If an employee or an employee’s family member is a victim of either domestic violence, a family offense, sexual offense, stalking, or human trafficking, the employee may use available New York sick leave for time off to:

Obtain services from a domestic violence shelter, rape crisis center, or other services program;
Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or their family members;
Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
File a complaint or domestic incident report with law enforcement;
Meet with the district attorney’s office;
Enroll children in a new school; or
Take any other actions necessary to ensure the health or safety of the employee or a family member or to protect those who associate or work with the employee.

Covered Family Members

Employers must use the following definitions to determine an employee’s eligibility for New York paid sick leave.

“Family Member” includes the employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent. It also includes a child or parent of an employee’s spouse or domestic partner.

“Parent” means a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in a legal parental role when the employee was a minor.

“Child” means the biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Calculating the Number of Employees to Determine Leave Allowance

The law instructs employers to use the number of employees who are employed by the company in the calendar year between January 1 and December 31 to determine how much leave they must provide to employees. This calculation is likely to confuse employers because total headcount typically varies throughout any one calendar year due to business needs, employer terminations, and voluntary resignations. Therefore, we anticipate that Department of Labor regulations will later clarify how an employer should calculate its size.

Employers may provide employees with additional sick leave beyond what the law requires.

Confidentiality Requirements

Employers must keep information about employees’ health and incidents of domestic violence, sexual offense, stalking, or human trafficking confidential. The New York paid sick leave law prohibits employers from requiring employees to disclose such confidential information in order to take accrued sick leave.

Sick Leave Increments and Carryover

Employers can require employees to take sick leave in reasonable increments. The minimum increment may not exceed 4 hours. Sick leave must be paid at either the employee’s regular rate of pay. (Or at minimum wage, if their regular pay rate is somehow lower.)

Accrued and unused sick leave may be carried over to the following year. An employer with less than 100 employees can restrict the use of accrued sick leave to a maximum of 40 hours per calendar year. Employers with 100 or more employees may have a policy that restricts the use of accrued sick leave to a maximum of 56 hours per calendar year.

Employers are not required to pay out accrued and unused sick leave upon termination of employment. However, they must notify employees if they do not plan to pay out unused leave.

Returning to Work

Employees have a right to return to the same position with equal compensation after sick leave. Employers may not retaliate against an employee for requesting or using accrued sick leave. Retaliation includes discharging, threatening, penalizing, or discriminating against an employee for exercising their rights under the law.

Recordkeeping

The law requires New York employers to keep payroll records documenting the amount of sick leave provided to each employee for a minimum of 6 years.

Upon request from an employee, an employer must give a summary of all used and accrued sick leave for the current and any previous years. Employers have 3 days to comply with such requests.

Employer Alternatives to Mandatory Sick Leave

Employers can satisfy the New York paid sick leave requirements through an alternative leave policy. However, the policy must offer at least as many hours and as beneficial of an accrual rate and carryover rules as the law requires. And employees must be able to use the leave for all of the reasons allowable under the law.

Employers with unions can negotiate alternatives to the New York paid sick leave requirements. The agreement must have been entered on or after September 30, 2020, and provide “a comparable benefit.” It also must specifically “acknowledge” the New York paid sick leave law.

Existing Sick Leave Requirements

The state law specifically allows that New York City may continue to enforce its existing sick leave law or amend it. But the NYC law must meet or exceed the New York paid sick leave law’s requirements.

The same provision says that “any paid sick leave benefits provided by a sick leave program enforced by a municipal corporation in effect as of the effective date of this section shall not be diminished or limited as a result of the enactment” of the New York paid sick leave law. This language seems to refer to local laws outside of New York City, such as the Westchester County paid sick leave law. But the language is somewhat ambiguous. It will be important to see how the Department of Labor clarifies the provision through its anticipated regulations.

Anticipated Regulatory Guidance

The Commissioner of Labor can adopt regulations for the enforcement of this new sick leave law. It is almost certain that regulations will be issued before the law’s September 30, 2020 effective date. Employers will need to rely on such guidance in reviewing their existing policies for compliance or to create new sick leave programs.

Get Ready To Comply

For now, employers should begin reviewing their current leave policies. One option will be to plan to transition to a paid-time-off policy that combines sick leave, vacation, and any other paid leave. This approach will be the easiest way for many employers to comply with the law while limiting the cost of additional paid leave.

However, employers should not expect to finalize their policies until the Department of Labor issues its regulations. These will likely answer many pertinent questions that will help determine the right approach for your organization.

These new sick leave requirements may prove particularly problematic for employers with existing collective bargaining agreements. They may need to either provide additional sick leave per the law on top of existing benefits or seek renegotiation of existing policies as soon as possible for a new agreement to take effect no earlier than September 30, 2020.

For more updates on the New York Paid Sick Leave law and other legal developments of interest to New York employers, subscribe to receive our email newsletter and follow Horton Law on LinkedIn.

March 29, 2020

New York Issues COVID-19 Quarantine Leave Guidance

New York State has posted frequently asked questions, request forms, and other COVID-19 quarantine leave guidance on a State website. The information aims to assist both employers and employees in navigating the requirements and benefits under the new law. Employees are eligible for either unpaid or paid leave if they are under a precautionary or mandatory order of quarantine or isolation related to COVID-19. They might also receive enhanced Paid Family Leave and Disability Benefits.

Our earlier summary of this law enacted on March 18, 2020, is available here:

New York State Creates COVID-19 Quarantine for Employees

Quarantine Leave Guidance Highlights

Here are some of NYS’s notable clarifications under the COVID-19 quarantine leave law:

How much pay will employees receive for COVID-19 Quarantine Leave?

Public employers and private employers with over 100 employees must provide at least 14 days of paid sick leave.

Private employers with between 11 and 99 employees, and those with fewer than 10 employees but a net 2019 income of at least $1 million, must provide at least 5 sick days at the employee’s regular pay rate. These employees are entitled to a combination of benefits under Paid Family Leave and Disability Leave for the remainder of the quarantine order or isolation for a maximum of $2,884.62 per week.

Employees of private employers with less than 10 employees and net income less than $1 million last year will be entitled to compensation through the period of order or isolation through Paid Family Leave or Disability Leave Benefits with a maximum benefit amount of $2,884.62.

What is the rate of pay?

Employees on salary or with other consistent fixed pay will receive their regular pay while on paid leave.

Part-time employees and others whose compensation fluctuates must receive pay for the number of hours they would typically work during a regularly scheduled workweek. Employers can use a reasonable period of time based on the employee’s prior work history to calculate an amount that reasonably represents the employee’s typical schedule.

Will employees receive leave if the quarantine/isolation order started before the law took effect?

An employee who was placed under a quarantine or isolation order by an authorized official before this law is entitled to job-protected paid leave through the remainder of the quarantine/isolation.

Can employers require employees to use existing sick leave accruals or other accruals (paid time off) for a COVID-19 quarantine order?

Employers must provide any leave available under the law separate from another available leave.

How does an employee apply for Paid Family Leave/Disability Leave Benefits to cover a COVID-19 related absence?

The State’s quarantine leave guidance website now includes these benefits request forms:

The employee must notify their employer of the requested leave and submit a request for paid family leave to the PFL insurer within 30 days after their first day of leave.

The employee completes the employee portion of the appropriate packet and submits it to their employer for completion of the employer sections. Employees must include their quarantine or isolation order.

The employer section includes a statement on the employee’s average weekly wage and an attestation confirming that the employee is unable to work remotely.

The insurance carrier must respond to the requested leave within 18 days of receipt of the request. It must either pay the benefits or issue a denial of benefits within that time. If the insurance company does not respond within 18 days, the employee may pursue arbitration of the claim before a neutral arbitrator.

Which employees are not eligible for leave under the NYS COVID-19 Quarantine Leave Law?

Employees are not eligible under this law if they are not:

subject to an order of quarantine or Isolation related to COVID-19; or
caring for a dependent minor who is subject to such an order.

Note that employees caring for a dependent minor child who is home only because of a precautionary school closing are not eligible for this leave.

Employees under a quarantine or isolation order who are asymptomatic and are able to work from home or similar means are also not eligible.

Employees who voluntarily traveled to a country with a level 2 or 3 health notice from the Centers for Disease Control despite being aware of the travel health notice are not eligible for paid leave benefits. However, they may still take time off without pay while under a quarantine or isolation order.

NY COVID-19 Quarantine Leave and the Federal Families First Coronavirus Response Act

Separate from this New York State law, the federal government has enacted the Family First Coronavirus Response Act (FFCRA). This federal law requires employers with under 500 employees to provide two weeks of emergency paid sick leave for circumstances related to COVID-19. The federal law would apply in cases of quarantine or isolation, but also grants paid leave in other situations.

For more, read Congress: Some Employers Must Give Paid COVID-19 Leave

New York employees eligible for leave under both the State and federal laws should receive the federal benefits plus any remaining difference in what the state law provides beyond the federal law. Note, however, that the federal law does not take effect until April 1, 2020. The State law took effect immediately beginning March 18, 2020.

Putting It All Together

The combination of new laws and extreme economic circumstances make it difficult for employers to figure out what they must do when an employee needs time off due to COVID-19. It is critical to review the various potentially applicable laws separately to determine eligibility. Then, the employer must determine the interplay between all the laws that apply in a specific situation. This analysis can be challenging. The State’s quarantine leave guidance (along with the U.S. DOL’s FAQs on the FFCRA) helps provide some answers. But employers should also consult with an experienced employment attorney familiar with the intricacies of the new and pre-existing laws when addressing these situations.

For our latest updates on the impact of the novel coronavirus on the workplace and other employment law issues, follow us on LinkedIn.

March 19, 2020

New York State Creates COVID-19 Quarantine Leave for Employees

On March 18, 2020, New York enacted a new law providing job-protected leave and compensation to any employee in New York State who is under a precautionary or mandatory order of quarantine or isolation due to COVID-19. The law provides varying benefits based on several characteristics of the employer.

In addition to the statutory terms discussed below, the law requires various State agencies to issue interpretative regulations by June 1, 2020. The law, however, took effect immediately.

Private (Non-Government) Employers

“Small” Employers

Private employers with less than 10 employees as of January 1, 2020, and income less than $1 million in the previous tax year must provide unpaid sick leave to any employee who is placed under a precautionary or mandatory order of quarantine or isolation due to COVID-19 through the duration of the order. Employers must continue to provide such employees and any other benefit that the employee has a right to under any law.

These employees are entitled to receive compensation for the duration of the leave through the New York paid family leave and disability benefits programs.

“Medium” Employers

A middle category of benefits applies to employees of employers with:

less than 10 employees who had a net income greater than $1 million in the previous tax year; and
between 11 and 99 employees.

These employers must provide at least 5 days of paid leave to employees under COVID-19 quarantine or isolation. They must also allow unpaid leave for the remainder of the quarantine or isolation period.

After the 5 days of paid leave, such employees will be eligible for paid family leave and disability benefits.

“Large” Employers

Employers with one hundred or more employees must provide at least 14 days of paid sick leave to any employee under COVID-19 quarantine or isolation.

The statute does not state that these employees can receive additional unpaid leave or paid family leave and disability benefits. That might be based on the assumption that quarantine usually wouldn’t last beyond 14 days. Or perhaps, the omission could be inadvertent and may be corrected through an amendment upon discovery by the State.

Public Employers

Public employers (i.e., all state and local government entities) must provide any employee or officer under a mandatory or precautionary order of quarantine or isolation with 14 days of paid sick leave.

The statute clarifies that such public employees must receive compensation at their “regular rate of pay” for “regular work hours” they miss due to the quarantine or isolation order. There is no specific clarification of the compensation rate for private-sector employees.

Additional Conditions for Quarantine Leave

Qualifying Quarantine/Isolation Order

To qualify for leave the employee’s order of precautionary or mandatory quarantine or isolation for COVID-19 must be issued by the State of New York, the NYS Department of Health, a local board of health, or any government entity duly authorized to issue such an order.

However, the law clarifies that this law does not apply to an employee who meets both of the following conditions:

has been deemed asymptomatic or has not yet been diagnosed with any medical condition; and
is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.

Job Restoration

Employers must restore any employee who returns to work from COVID-19 quarantine leave to the position the employee held before taking the leave. The employee must receive the same pay and other terms and conditions of employment.

The law prohibits discrimination and retaliation against employees for taking this leave.

Conversely, the law does not bar employers from taking personnel actions unrelated to “any request to use, or utilization of, any leave provided by this act.” Presumably, this acknowledges that employers may discipline or even layoff or discharge employees due to performance, misconduct, or economic factors.

Impact on Other Sick Leave

Any employee who qualifies for leave under this law may take it without losing any other accrued sick leave.

Disqualifying Travel

Any employee who (other than for work or at the direction of their employer) traveled to a country subject to a Level 2 or Level 3 travel health notice from the Center for Disease Control and Prevention, despite receiving such notice, is not eligible to receive paid sick leave during the period of quarantine or isolation. Such employees still may use any other accrued paid sick leave and remain entitled to unpaid leave for the duration of the quarantine or isolation.

Employee Eligibility for Insurance Benefits

New York State Disability Benefits

The new law amends, for limited purposes, the definition of “disability” under the New York State Disability Benefits Law to mean:

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 a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19 and when the employee has exhausted all paid sick leave provided by the employee’s employer” under the COVID-19 quarantine leave law.

For employees with such a disability, the law waives the standard 5-day waiting period before receiving disability benefits. This waiver allows qualifying employees to begin receiving disability benefits starting the first full workday that they miss due to COVID-19 quarantine or isolation.

The law seems to increase substantially the dollar amount of disability benefits potentially available for employees missing work for this purpose. Usually capped at $170 per week, disability benefits for qualifying employees on COVID-19 quarantine leave will be equal to the difference between the maximum family leave benefit and the employee’s average weekly wage, up to a maximum of $2,043.92.

New York State Paid Family Leave

The COVID-19 quarantine leave law also amends, for limited purposes, the definition of “family leave” under the New York State Paid Family Leave Benefits Law to mean:

(a) any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19; or

(b) to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19.

Notably, part (a) of this revised definition provides for “family leave” in the case of the employee’s own quarantine or isolation due to COVID-19. This addition is a significant departure from the existing NYS paid family leave provisions, which only apply to particular circumstances unrelated to the employee’s own medical condition.

Simultaneous Benefits

The above all now means that an employee under quarantine or isolation for COVID-19 can receive both disability benefits and paid family leave benefits at the same time.

However, the law caps these benefits for employees under quarantine or isolation at no more than $840.70 in paid family leave benefits and $2,043.92 in disability benefits. An employee’s average weekly wage would have to be at least $2,884.62, or $150,000 annually, to reach the cap.

Ironically, it seems that perhaps employees making less than about $1,400 per week would end up with less than full wage replacement. That is because the law determines the amount of disability benefits based on the “maximum weekly family leave benefit,” which arguably is the maximum for any employee (currently $840.70), rather than the lower amount that the employee in question would receive in paid family leave benefits. It’s uncertain whether the State intended this discrepancy. It is possible that they might seek to “clarify” the calculation by an amendment or further regulatory action.

Interaction with Other Laws

This New York State measure addresses possible overlap with federal law. Indeed, within hours of Governor Cuomo signing this act, President Trump signed a bill from Congress that also provides for up to two weeks of paid sick leave related to COVID-19. The federal law would apply to some of the same employees and employers as the State law, does but there are differences in coverage.

The New York law indicates that its benefits (whether through paid sick leave, paid family leave, or disability benefits) are not available to the extent the employee otherwise receives compensation under the federal law. However, where the State law provides more generous benefits than the federal law, the employee is eligible to receive the difference in benefits to supplement what the federal law requires.

Our full summary of paid sick leave and paid FMLA requirements under the Families First Coronavirus Response Act is available here.

Penalties

The New York law does not contain any express penalties for non-compliance. However, existing penalty provisions under the New York Disability Benefits Law and New York Paid Family Leave Benefits Law would likely apply to relevant portions. Moreover, failure to pay the new sick leave benefits might constitute a failure to pay wages subject to stiff penalties under the New York Labor Law.

What Employers Must Do

Asking employers to comply with this new law, especially when coupled with new federal requirements and during an unprecedented national health crisis, is no small request by the State. The provisions are quite complex, including peculiar implications under existing insurance policies. But the law is now in effect and should be taken seriously. Ideally, this would include updating applicable policies, such as your paid family leave policy, which all New York employers must have in writing. We strongly encourage you to consult with experienced employment attorneys in attempting to apply this new array of leave benefits to your workplace.

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