Both the Federal and New York State governments have responded to the difficulties presented by the coronavirus and have each passed laws to respond and provide relief. We are providing the most recent information which is rapidly unfolding.
President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020. The employee leave portions are expected to take effect on April 2, 2020. The federal law applies to private employers that have fewer than 500 employees and all public employers. Healthcare providers and emergency providers are not required to comply with the law although these terms are not specifically defined. FFCRA includes both paid family leave and paid sick leave.
Paid Family Leave: Expansion of FMLA for Childcare Reasons
FCRA provides leave when an eligible employee cannot work because a minor child’s school or daycare is closed. An employee is eligible for the paid family leave benefit when employed for 30 calendar days. The first 10 days of leave will be unpaid, but employees may elect to use accrued PTO. Eligible employees will be paid two-thirds of their regular rate of pay. Pay is capped at $200 per day and an aggregate of $10,000.
Emergency Federal Paid Sick Leave
When an employee is under quarantine or self-isolation, caring for a family member, or has a child whose school or childcare provider has closed, emergency paid sick leave will apply. Eligible full-time employees are entitled to full pay compensation for 80 hours, capped at $511 per day per employee and $5,110 in the aggregate. Part-time employees are entitled to pay equivalent to the average number of hours they work in a two week period.
Employees cannot be required to use existing paid time off or vacation before using Federal Paid Sick Leave.
New York State Response
Governor Cuomo signed into law paid sick leave, expansion to NY Paid Family Leave and changes to the NYS Disability Law. The law went into effect on March 18, 2020. All employers are covered by the law, but the amount of leave varies depending on the employer’s size on January 1, 2020. The changes provide pay and job protection for New Yorkers who have been quarantined by a New York State or local governmental authority as a result of the novel coronavirus. The law does not apply to employees who voluntarily quarantine. The law does not apply to quarantined employees who have no symptoms and can remotely perform their job.
Employers with 1-10 employees and net income of less than $1 million must provide employees unpaid sick leave until the quarantine period ends.
Employers with 1-10 employees and net income of $1 million or more must provide employees five days of paid sick leave and unpaid sick leave until the quarantine period ends. After the five days of paid sick leave are exhausted, employees are eligible for disability and paid family leave benefits.
Employers with 11-99 employees must provide five days of paid sick leave, followed by unpaid leave until the quarantine period ends. After the five days of paid sick leave are exhausted, employees are eligible for disability and paid family leave benefits.
Employers with more than 100 employees must provide employees with fourteen days of paid sick leave during a mandatory or precautionary quarantine.
Public employers must provide employees with at least fourteen days of paid sick leave during a mandatory or precautionary quarantine.
The sick leave must be provided without employees losing accrued sick leave time.
New York Paid Family Leave and Disability Leave are Expanded
Employees can take NY paid family leave if they or their minor child are subject to a quarantine order. Here, NY paid family leave will cover employees for their own condition which was previously prohibited. This expansion is limited to employees subject to an official quarantine.
Employees will be permitted to utilize disability leave if quarantined. This is permitted when an employee cannot perform the regular job duties as a result of the quarantine order, and paid sick leave is exhausted. The traditional 7-day waiting period to receive disability benefits is waived. A quarantine order issued by a governmental agency is sufficient proof of disability or proof of need for paid family leave.
If employees have no symptoms or have not been diagnosed with a medical condition and are physically able to work while under quarantine are not eligible for benefits.
Will Federal or New Benefits Apply?
When any federal benefit is enacted and more generous than the NY benefit, the federal law will preempt NY law. However, if the federal benefit is less generous, employees can claim benefits in the amount of the difference between the two programs.
Additionally, Governor Cuomo issued an executive order directing non-essential businesses to implement work-from-home policies effective Friday, March 20. Businesses that rely on in-office personnel must decrease their in-office workforce to no more than 25%.
Exemptions from the order will include shipping, media, warehousing, grocery and food production, pharmacies, healthcare providers, utilities, banks and related financial institutions.
The New York Empire State Development Corporation has published guidance detailing which businesses will be considered essential and exempt from the executive order. Click here to access the NYESDC information and guidance on the executive order.
Lastly, click here to access Executive Order 202.7, Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency for detailed information regarding mandatory closures and other modifications.