Category: Paid Family Leave

Quarantine Leave

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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Paid Family Leave in 2020

Paid Family Leave in 2020

We are now in the second year of New York’s Paid Family Leave Program. The phase-in continues. And it’s getting more costly for employees. What do you need to know about Paid Family Leave in 2020?

Employee Contributions

The New York Department of Financial Services (DFS) has announced the maximum employee-contribution rate for 2020. It will increase from 0.153% to 0.270% of the employee’s gross wages, up to an annual maximum. This maximum annual contribution will be $196.72 in 2020 compared to $107.07 in 2019.

The contribution rate increased from 0.126% to 0.153% in 2019. That changed the maximum annual contribution from $85.56 to $107.97.

Overall, the maximum annual contribution has increased by 130% in just 2 years.

This means an additional annual cost of up to $111.16 for many employees from 2018 to 2020. And additional increases are likely each year.

2020 Paid Family Leave Benefits

But it’s not all bad news for workers. DFS also confirmed that the weekly paid family leave benefit will increase again in 2020. The weekly benefit rate increases from 55% of the employee’s average weekly wage to 60%. This percentage only applies up to the first $1,401.17 of weekly earnings. An employee who earns more than that can only receive $840.70 per week in paid family leave benefits.

The maximum leave allowance remains 10 weeks as in 2019.

Future Paid Family Leave Rates

Expect the contribution and benefit rates to change again.

Under the original schedule, maximum weekly benefits will increase to 67% of the average weekly wage in 2021. The NYS Superintendent of Financial Services could delay these increases, but did not do so for 2020.

The maximum leave allowance will increase to 12 weeks per year beginning in 2021.

What Must Employers Do?

Companies should confirm their 2020 paid family leave premiums with their insurance carriers. Then make sure that next year’s payroll will include the correct contribution rates.

If your paid family leave policy reflected specific rates for paid family leave in 2019, then you might need to change those.

This is also an excellent opportunity for employers to review which employees are eligible to opt out of the paid family leave program. Employers must offer qualifying employees the chance to waive coverage (and corresponding paycheck deductions). However, the waiver automatically expires if the employee later becomes eligible for paid family leave.

Finally, employers might find that these changes increase the utilization of paid family leave in 2020. On one hand, the benefit is higher, making it more financially viable for employees to take time off from work. On the other hand, since employees have to pay more for the program in the first place, they might feel even more entitled to use it. These factors might require employers to replace more worker hours next year or otherwise allow for lost productivity.

 

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New York Bereavement Leave

Cuomo Vetoes New York Bereavement Leave Law

In June 2018, the New York State Legislature overwhelmingly approved legislation that would have granted paid bereavement leave rights to most employees. The measure would have changed the New York Paid Family Leave Benefits law to include bereavement leave along with the existing qualifying circumstances.

In light of extensive resistance from the business community, the Legislature did not formally deliver the bill to the Governor’s office until December. Upon receipt, Governor Cuomo vetoed the legislation ostensibly out of concern for the impact on workers.

Proposed Bereavement Leave Amendment

New York bereavement leave legislation passed the Senate by a vote of 61-1 and the Assembly 111-32.

Republican Senator Rich Funke and Democratic Assemblyman Joe Morelle sponsored the amendment. Both have lost children who were in their early thirties. Their memorandums in support of the bill stated:

“The inability to take time to process grief not only has an impact on a person’s health and their family, it has a profound impact on their ability to carry out their normal day to day tasks. However, on average, four days are allotted for the death of a spouse or child, according to the Society for Human Resource Management 2016 Paid Leave in the Workplace Survey.”

The legislation relied on additional wording in the Paid Family Leave Benefits law that took effect at the beginning of 2018. It modified the definition of “family leave” to include “leave taken for the purposes of bereavement due to the death of a family member.” The legislation also indicated that a death certificate would provide the necessary certification of eligibility for leave.

Potential Impact of Proposal

These minimal revisions to the Paid Family Leave legislation could have had extreme consequences.

Bereavement leave apparently would have been available for up to 10 weeks (increasing to 12 weeks in 2021) each year without any limitation on the timing relative to the death. Moreover, it would have been available equally regarding a broad array of family members, including grandchildren, children, spouses, parents, and grandparents. Although the New York Workers’ Compensation Board likely would have been able to issue regulations related to the new bereavement leave component of Paid Family Leave, it might have lacked authority to place further limitations on those parameters.

As the Paid Family Leave Program operates as a (primarily) employee-funded insurance benefit, employees would have had to contribute more out of their paychecks to fund the insurance premiums. As with the original Paid Family Leave categories, this long-term bereavement leave would have been difficult for the State to price effectively, potentially leading to over- (or more likely) under-funding in the first years.

Business Community Opposition

The Business Council of New York led the efforts of more than 20 prominent business groups, including many chambers of commerce, seeking Governor Cuomo’s veto of this legislation.

This consortium’s August 2, 2018 letter to the Governor’s office noted that the Legislature had rebuffed efforts to include more reasonable limits on paid bereavement leave:

“The Business Council’s recommendations for reasonable parameters on any expansion of PFL to bereavement were rejected by both the Senate and Assembly sponsor. These included limiting bereavement leave to several weeks, to be used within 180 days of a family member’s death.”

This letter also expressed concern “that the Legislature is proposing a dramatic expansion of the Paid Family Leave Act that has only been in effect for just over six months [now one year], and before any usable data is available regarding utilization or costs. Employers, the state, insurers and employees are still working to understand and implement the current law.”

Finally, these business groups noted that fully-paid bereavement leave is already a standard employee benefit, though often only for a few days; and that “Employers understand that to attract and retain the best talent available they need to be there for their employee[s] in their time of need and will continue to do so without another burdensome government mandate.”

Governor Cuomo’s Veto

Although business groups more vocally object to this legislation, Governor Cuomo publicly relied almost exclusively on supposed worker concerns in his veto message:

“Workers’ organizations such as A Better Balance have expressed significant concerns to me about this bill, and, as difficult as it is, I must heed their concerns.”

A Better Balance prides itself on having been active in supporting New York’s original Paid Family Leave law. But the organization posted a call to action on its website encouraging the Governor to veto the bereavement leave amendment. It emphasized the anticipated high costs to workers:

“Costs – entirely borne by workers – will be extremely high. Because paid family leave is 100% worker funded, this bill would impose potentially very high, uncalculated costs on New York workers—costs that will fall especially heavily on low-income workers.”

Governor Cuomo repeated that concern, while otherwise sharing some raised more specifically by the Business Council. For example, the veto memorandum notes: “Second, there is no stated limit on when leave can be taken. Unlike bonding leave, which is limited to 12 months from the qualifying event, no such limit would exist here. This drafting failure could lead to claims being made well beyond a year from death.”

The Future of New York Bereavement Leave

Employers should not expect this issue to disappear in 2019. Governor Cuomo concluded his veto message by commenting: “I am committed to working with the Legislature in the coming legislative session to resolve these issues for the benefit of hardworking New Yorkers.”

What might an alternative New York bereavement leave law look like?

New York Legislators will have to decide whether to continue to pursue bereavement leave through the Paid Family Leave Program or another path.

PFL offers the benefit of being an existing, employee-funded system. But any addition of bereavement leave must be much more narrowly drafted than it was in the 2018 legislation. The lawmakers should separately address issues such as length of leave available per death, total leave available per year, timing of leave, etc. And 10 or 12 weeks projects as an unaffordable and overly burdensome duration. The Legislature should also consider whether the same leave parameters should apply equally to small and larger employers.

The Legislature could alternatively seek to impose a mandatory paid or unpaid bereavement leave requirement outside of the Paid Family Leave Program. However, it would then be more difficult to effect an employee-paid system. Requiring employers to offer more than a couple of days of paid bereavement leave would raise significant opposition. And any requirement that small employers pay employees not to work could be financially crippling.

 

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