February 4, 2021

New York Emergency Sick Leave Is Now Even More Complicated…

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As of January 1, 2021, New York employers now have five different paid leave requirements to manage when it comes to any given COVID-related absence: 

Figuring out which type of leave applies to each different COVID-related absence is an understandably daunting task. Your best bet is to reach out to an HR expert for guidance.

But, if that is not an option or you just want to get a head start on understanding this complex legal landscape, we’ve created this guide to help keep you on the right track.  If an employee needs to be absent due to COVID, follow these steps:

 

First, determine whether NY COVID PSL applies.

Since March of last year, New York employees have been entitled to NY COVID PSL if they are subject to a quarantine or isolation order. The amount of days of NY COVID PSL employees are entitled to and whether they are paid depends on the size and revenue of your company.  

To determine whether the employee qualifies for NY COVID PSL, please refer to our FAQ below. Please note that there is expanded eligibility for healthcare employees.  

If the employee does qualify for NY COVID PSL, these five days will run concurrently with any FFCRA pay they still have available (see next step). Fortunately, this means you will be able to receive a tax credit for up to two weeks of NY COVID PSL paid out to any employee.

IMPORTANT UPDATE: In some cases, employees may be entitled to additional NY COVID PSL if they test positive for COVID after the end of their initial period of isolation / quarantine. Please see the FAQ below for more information on this important new update. 

 

Second, determine whether FFCRA applies and file for your tax credit.

FFCRA allows employees to take up to two weeks of leave for certain COVID-related reasons.  Paid leave under FFCRA was originally scheduled to expire December 31, 2020. The FFCRA benefit has not been renewed, meaning you are no longer required to provide FFCRA paid leave to employees in 2021. However, if an employee did not use up all of their FFCRA time last year, you can voluntarily choose to provide that paid leave and receive the tax credit for it through March 31, 2021.

For New York employers required to pay out NY COVID PSL, it is in your best interest to provide FFCRA because it will allow you to receive a tax credit for paid sick leave you are already required to provide under state law.  

If the employee qualifies for NY COVID PSL, then they will definitely qualify for FFCRA pay as well, assuming they haven’t used it already. As we mentioned earlier, NY COVID PSL and FFCRA can run concurrently. This is because the NY COVID PSL law specifically states that employees should not be provided duplicative COVID paid leave benefits under state and federal law. Effectively, what this means is that you will be able to get a tax credit for up to two weeks of NY COVID PSL.

So, for example, if you are required to provide 5 days of NY COVID PSL and the employee needs two weeks of COVID leave, the first week of leave will be under both the NY COVID PSL law and the federal FFCRA law. The second week of leave will just fall under FFCRA.  You should document that both of these benefits are being used at the same time in a leave letter to the employee.

If the employee does not qualify for NY COVID PSL, they may still qualify for FFCRA because it has more expansive eligibility criteria. To see whether the employee may qualify for FFCRA, please read our FAQ here.  

 

Third, see if the employee wants to use any accrued NY PSL.

Once the employee has exhausted their NY COVID PSL and FFCRA benefit, if they need additional time off, you can give them the option to use any NY PSL they have available. As you are likely aware, effective 1/1/21, employees were able to start using their accrued paid sick leave as mandated by state law. This NY PSL is separate and apart from NY COVID PSL.  

Please note, you should not require your employees to use their NY PSL if they do not wish to, and, in many cases, they may prefer to save this time for later and simply apply for wage replacement under the state’s PFL and/or disability leave benefits instead (see next step).   

For more information on NY PSL, please see this state FAQ.

 

Fourth, provide the employee with information so they can apply with the state for PFL and/or disability leave.

New York has expanded their paid family and disability leave benefits to cover employees who cannot work due to COVID. You should provide them with this link to the NY PFL site so that they can file for wage replacement from the state after they have exhausted their other paid leave options.  

 

Finally, if the employee does not qualify for NY COVID PSL and you refuse to allow them to return to work, you must pay them their regular rate during their absence.

On 1/20/2021, the New York Department of Labor released new guidance stating that if an employer sends an employee home due to potential exposure to COVID (whether it occurs in the workplace or not) and the employee does not qualify for a NY COVID PSL, then the employer needs to pay the employee at their regular rate until (1) the employer permits the employee to return to work, or (2) the employee becomes subject to a mandatory or precautionary order of quarantine or isolation, at which time the employee would be eligible for NY COVID PSL.

Again, if the employee qualifies to FFCRA but not NY COVID PSL, you may be able to get a tax credit for this time. 

 

New York COVID Paid Sick Leave FAQ

Does the NY COVID PSL law allow employers to exempt their “health care provider employees” like FFCRA does?

No. As you may know, under FFCRA, employers may exempt health care providers from paid sick leave and expanded family and medical leave. However, even if an employer exempts such employees from the paid sick leave and extended family and medical leave under FFCRA, the employer must still follow New York’s COVID PSL law. In fact, healthcare provider employees have expanded eligibility under New York’s law. Read more about this in the answer to the question immediately below.

 

When does the NY COVID PSL benefit apply?

NY COVID PSL applies when an employee is under an order of mandatory or precautionary 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.

Employees should follow this guidance for how to obtain an order of quarantine or isolation.

IMPORTANT: The New York Department of Health (NY DOH) and the New York Department of Labor (NY DOL) released joint guidance on this law that explains that there is expanded eligibility for health care employees.    

If an employer directs a health care employee not to work or prohibits the employee from working because the employee:

  • Is suspected or confirmed to have been exposed to COVID-19 
  • Exhibits symptoms of COVID-19 and/or 
  • Is diagnosed with COVID-19 

Then, the employee:

  • Is deemed to be subject to a mandatory order of quarantine from the Department of Health
  • Is entitled to sick leave as required by New York’s COVID PSL law and
  • Does not need to provide the employer with any additional documentation to be eligible.

Employers who can demonstrate that they have a “staffing shortage” can, in some limited cases, require a health care employee who has been exposed to, diagnosed with, or has symptoms of COVID-19 to report to work even though they are technically entitled to sick leave under these laws.

However, these limited exceptions are complicated and generally inadvisable (for obvious reasons), so we have decided not to detail them here. CEDR members can reach out to the Solution Center if you are interested in learning more about these exceptions.  

 

Does the current Stay-at-Home Order issued by Governor Cuomo qualify as a mandatory or precautionary quarantine or isolation under the COVID PSL law?

No. New York Governor Andrew Cuomo issued a Stay-at-Home Order on Sunday, March 22, 2020, that requires all non-essential employees to stay home.  However, this is different from a public health agency issued quarantined. Employees should follow this guidance for how to obtain an order of quarantine or isolation.

 

What about my employees who can work from home?

Employees who are asymptomatic or have not yet been diagnosed with a medical condition and are physically able to work remotely or through other means while under a mandatory quarantine or isolation do not qualify for emergency sick leave benefits.

 

Which employers have to follow this?

All employers in New York are required to provide benefits under the law, but the amount of sick leave and whether it is paid depends on employer size. 

 

Which employees qualify for this benefit?

All employees are eligible for this benefit. There is no requirement that they be full time, or that they have been employed for a set period of time. 

 

Employers with 10 or fewer employees

Employers with 10 or fewer employees as of January 1, 2020, and a business net annual income less than $1 million, must provide unpaid leave through the duration of the quarantine. If you have a net annual income greater than $1 million, please move to the next section for the rules that apply to you.

While your obligation is to grant them unpaid time off, employees can use a combination of NYS Paid Family Leave and disability benefits to receive pay during the rest of the quarantine.

  • NY Paid Family Leave (PFL) is insurance coverage that provides up to 60% of the employee’s pay, up to a maximum weekly benefit of $840.70.
  • After receiving the full PFL benefit, employees can 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 apply for these benefits here.

 

Employers with 11-99 employees

Employers with between 11-99 employees as of January 1, 2020, and smaller employers (1-10 employees) with a business net annual income greater than $1 million, must provide 5 days of paid leave.

  1. It starts with using paid sick leave. 
    • Employers are required to provide employees with at least five days of paid sick leave.
    • In addition to these 5 days of emergency paid sick leave, employers are required to allow employees to use any other accrued paid sick leave under their policies.
  2. After that, the employee can use a combination of NYS Paid Family Leave and disability benefits.
    • NY Paid Family Leave (PFL) is insurance coverage that provides up to 60% of the employee’s pay, up to a maximum weekly benefit of $840.70.
    • After receiving the full PFL benefit, employees can 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 apply for these benefits here.

 

Employers with 100 or more employees

Employers with 100 or more employees as of January 1, 2020, must provide employees with 14 days of paid sick leave.

 

What if the employee tests positive for COVID after their first quarantine / isolation order?

Under new guidance issued by the NY DOL on 1/20/21, employees who continue to test positive after their first order of isolation / quarantine, are eligible for NY COVID PSL for up to two more periods of isolation / quarantine.  

The new guidance explains that employees do not need to be tested in order to return to work after a period of isolation / quarantine (unless they work in a nursing home). But, if the employee decides to get tested anyway and that test comes back positive, the employee is entitled to another period of isolation / quarantine and pay under NY COVID PSL, up to a maximum of three periods of isolation / quarantine total. 

In order to be eligible for additional NY COVID PSL, the employee does need to submit documentation from a licensed medical provider or testing facility attesting that the employee has received a positive diagnostic test for COVID-19 after completing the initial period of isolation, unless the test was administered by the employer.

This new guidance will likely be challenged in the courts because it greatly expands this benefit, potentially beyond the language of the law. However, while it is being contested, your safest option is to follow the guidance.

 

What is the sick leave rate of pay?

Employees must be paid at their regular rate of pay for those hours during which the employee is absent from work due to the mandatory or precautionary order of quarantine or isolation due to COVID-19.

 

What if I already provide paid sick leave?

Employees are still entitled to any accrued paid sick leave under your policies, in addition to this emergency paid sick leave. NY COVID PSL should be used before the employee starts to use any other accrued sick leave benefits under your policies. 

 

Are there protections for employees who request to use paid sick leave under this law?

Yes.  Employees who take this emergency paid sick leave must be returned to their job after the quarantine period ends.

 

Am I required to provide notice to my employees?

Yes, you should let your employees know they are entitled to paid/unpaid days off.

 

What if the employee is subject to quarantine or isolation because they decided to travel outside of the country?

If the quarantine is the result of non-business travel to a country identified as level 2 or 3 risk by the CDC and, prior to travel, the employee was provided with the CDC’s travel health notice and informed that NY COVID PSL would not be available upon return, the employee is not entitled to paid sick leave under this law. The employee is entitled to use any accrued paid time off and is entitled to unpaid leave during the duration of the quarantine. These employees may be eligible for pay under FFCRA, as well. 

For more details on the federal law, please review our  Families First Coronavirus Response Act Guidance and FAQ.  We also recommend reviewing the state’s resources on the emergency paid sick leave law which you can find here:

Website for employers: COVID-19 Paid Leave: Guidance for Employers

PDF summary: One page summary for employers

Text of the law: New York Emergency Paid Sick Leave

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Updated February 4, 2021; originally published March 25, 2020.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

Comments

  1. AvatarEsida Ivanjesku says

    This is great. If employees are laid off before April 2nd are they still eligible for FMLA and Emergency Paid Sick leave?

    • AvatarCEDR Solutions says

      In New York, all employers are subject to Emergency Paid Sick Leave at the state level beginning March 18. Federal family leave and sick benefits do not go into effect until April 1. If you are an owner or manager of a dental or healthcare practice, feel free to join the discussion and ask additional questions on our private, professional Facebook forum, HR Base Camp.