March 25, 2020

New York Emergency Sick Leave

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Effective March 18, 2020, all New York employers are required to provide emergency sick leave to employees under state law.  Effective 4/1/2020, all New York employers are required to provide emergency paid sick leave under federal law. Employers in New York City and Westchester County have already been required to provide paid sick leave to employees for some time now.  All of these laws have different requirements and you are probably wondering how to follow them at the same time. This is a guide to answer all of your questions:

  • From 3/18/20 to 3/31/20, all New York employers should follow the state emergency sick leave law and ignore the federal law.    
  • Starting 4/1/20, both state and federal paid sick leave laws are effective and employees should receive the greater of the benefits available under state or federal law without duplication of benefits.
  • If you are subject to New York City or Westchester County mandatory paid sick leave laws or you otherwise have a paid sick leave policy, any emergency paid sick leave will be in addition to your existing paid sick leave policies.

 

When does the NY emergency sick leave benefit apply?

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.

 

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

Unfortunately, this is not clear. 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 than a public health agency issued quarantined. We are waiting on the state to issue clarifying regulations on this topic. 

 

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.
    • All paid sick leave benefits must be exhausted before the employee can file for any other state benefit.
  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 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.  Emergency paid sick leave 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 emergency paid sick leave 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.  

New York Emergency Paid Sick Leave & Federal Emergency Paid Sick Leave Combine (Rules to follow starting 4/1/20)

  1. For large employers who are already required to provide 14 days of paid sick leave under the NYS Emergency Paid Sick Leave law, your obligations under the federal law have already been met.  You do not need to provide any additional emergency paid sick leave. 
  2. For those small or medium sized employers who are required to provide unpaid leave or 5 days of paid emergency sick leave under NYS law, you will need to provide additional paid sick leave under the federal law, starting on 4/1/20.    

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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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.