The COVID-19 pandemic and subsequent lockdown have changed the way businesses operate for the foreseeable future. New federal and New York State laws aim to provide clearer guidelines for employers and employees regarding paid family leave and time off, among other matters.
At the federal level, the Families First Coronavirus Response Act (FFCRA) mandates employers to provide employees with paid sick leave or expanded family and medical leave for COVID-19-related reasons. It stipulates which reasons, employers, and employees qualify. The effective date is April 1, 2020.
At the New York State level, additional legislation provides Paid Family Leave and Disability Benefits for eligible employees if they or their minor dependents are subject to an order of quarantine or isolation due to COVID-19.
Certain employees may also take paid time off if they are under ordered quarantine or isolation. The leave available varies depending on the employer size and net annual income. It is not available for employees able to work through remote access or other means.
In addition, employees may also be able to take Family Care to care for a family member who contracted COVID-19, including outside New York State. The legislation stipulates what health conditions, which family members, and which employees qualify.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT
Important notes
Each covered employer must post in a conspicuous place on its premises, or share by email or other means, a notice of FFCRA requirements and employee rights.
Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Employers of health care providers or emergency responders may elect to exclude such employees from FFCRA leave eligibility.
Every dollar of required paid leave, plus the cost of an employer’s health insurance premiums during leave, will be covered 100% by a dollar-for-dollar refundable tax credit available to the employer.
The FFCRA’s paid leave requirements are enforced and administered by the Department of Labor’s Wage and Hour Division (WHD). They will apply from the effective date through December 31, 2020.
Key provisions
FOR ALL EMPLOYEES
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
FOR EMPLOYEES EMPLOYED FOR AT LEAST 30 DAYS
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Qualifying employers
Not all employers are covered by the FFCRA. The provisions apply to private employers with fewer than 500 employees, though certain provisions may not apply to certain employers with fewer than 50 employees. These may also qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Further regulations in this matter are expected in April.
The FFCRA also does not apply to most federal employers. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by the FFCRA. However, they are covered by the paid sick leave provision.
Qualifying reasons for leave
An employee qualifies for paid sick leave under the FFCRA if s/he is unable to work or telework because:
- s/he is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- s/he has been advised by a health care provider to self-quarantine related to COVID-19;
- s/he is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- s/he is caring for an individual or is self-quarantining subject to an order*;
- s/he is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- s/he is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
(*A mandatory or precautionary order of quarantine or isolation issued by the State of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.)
In addition to paid sick leave, an employee qualifies for expanded family leave if they are caring for a child whose school or place of care is closed, or child care provider is unavailable, for reasons related to COVID-19.
Duration of leave
For reason no. 5: A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
For all other reasons: A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
Calculation of pay
Note: paid sick time provided under this Act does not carry over from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment.
For reasons 1–3: employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
For reasons 4 or 6: employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
For reason 5: employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave). An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this section.
Tax credits
Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the IRS Coronavirus Tax Relief webpage.
Penalties and enforcement
Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act.
The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
NEW YORK STATE PAID FAMILY LEAVE
The new legislation signed by Governor Cuomo enables eligible employees to use Paid Family Leave if they or their minor dependents are subject to an order of mandatory or precautionary quarantine or isolation due to COVID-19 (issued by the State of New York, the Department of Health, local board of health, or any government entity authorized to issue such order).
This legislation is different from Family Care, but employees with eligible family members who contracted COVID-19 and are suffering from a serious health condition may be able to take Family Care to care for them. This includes family members outside of New York State.
In 2020, eligible employees may take up to 10 weeks of Paid Family Leave. To calculate these and other benefits, use the NYS 2020 Wage Benefit Calculator.
For specific information on family member eligibility, what constitutes a serious health condition and who can certify it, how to apply for Paid Family Leave, and how to get paid, visit the NYS Paid Family Leave for Family Care page.
NEW YORK STATE PAID TIME OFF
Employees under a mandatory or precautionary order of quarantine or isolation due to COVID-19 (see issuing authorities above) may be eligible for paid time off, depending on the size and net annual income of the employer. This benefit is not available to employees able to work remotely or by other means.
Employees will have job protection for the duration of the quarantine.
Small employers
10 or fewer employees as of January 1, 2020, and a business net annual income of less than $1 million in 2019.
- Eligible employees can use NY Paid Family Leave (PFL). This is insurance coverage that provides up to 60% of pay, up to a maximum weekly benefit of $840.70.
- After receiving the full PFL benefit, employees will receive disability benefits to match their full wages up to a maximum weekly disability benefit of $2,043.92, for a total of $2,884.62 per week.
- There is no waiting period for either benefit.
Employees can use a combination of NYS Paid Family Leave and disability benefits.
Employers are required to provide job-protected unpaid sick leave during the employee’s period of quarantine.
Medium Employers
11–99 employees as of January 1, 2020, and smaller employers (1–10 employees) with a business net annual income greater than $1 million in 2019.
The Paid Family Leave and disability benefits remain the same as for small employers, but employees must first use their paid sick leave. Following, employees can use a combination of NYS Paid Family Leave and disability benefits.
Employers are required to provide at least five days of paid sick leave.
Large Employers
100 or more employees as of January 1, 2020, as well as all public employees.
- Employers must provide employees with at least 14 days of paid sick leave for a COVID-19-related quarantine, which should cover the period of a mandatory or precautionary order of quarantine or isolation.
For more information and instructions on how to apply, visit the NYS “If You Are Quarantined Yourself” page.
These federal and New York State laws seem to operate concurrently. When federal and NYS benefits for the same reasons overlap, state benefits are reduced by the amount received under the federal law
We will continue to update you with further developments and details as they become available. To stay updated with the latest information, sign up for our mailing lists.
Andrew Kimler is a partner at Vishnick McGovern Milizio LLP, where he heads the Employment Law and Alternative Dispute Resolution Practices and is a key member of the firm’s Commercial Litigation and LGBTQ Representation Practices. He regularly writes and lectures on employment law matters. For more information, contact Mr. Kimler at akimler@vmmlegal.com or 516-437-4385 x122.
