Yesterday, Mayor Bill de Blasio announced the closure of the New York City Public Schools. This decision will not only impact students and teachers, but will also affect employers who may have employees who can no longer work due to childcare obligations. Employers must know the multiple layers of legal protection available to employees who request permission to either work remotely or request time off to care for their children now out of school. Below, we remind employers about some of the leave options available to employees.
FFCRA
Under the Federal Families First Coronavirus Relief Act (“FFCRA”), employers with fewer than 500 employees must provide two categories of paid leave due to school closures:
- Emergency Paid Sick Leave which consists of up to 80 hours at two-thirds pay, up to $200 per day; and
- Emergency Expanded Family and Medical Leave (two weeks unpaid, 10 weeks at two-thirds pay, up to $200 per day)
Based on these two leave categories, and depending on whether the employee has previously used leave for either reason, an employee who cannot work because his or her child’s school has been closed due to the COVID-19 pandemic may have these paid leave options.
New York State Paid Family Leave
New York State has clarified that an employee is not eligible to utilize Paid Family Leave because an employee’s child is out of school due to school closure. However, employers must be careful to determine whether another reason would qualify an employee for Paid Family Leave such as the child is subject to a mandatory quarantine order or has tested positive for COVID-19.
New York City Earned Safe and Sick Time Act
The New York City Earned Safe and Sick Time Act (“ESSTA”) provides that employees may use sick leave to take time off from work when they “need to care for a child whose school or child care provider closed due to a public health emergency.” Due to recent amendments to ESSTA, discussed in more detail here, employers are cautioned to ensure that their sick leave policies are in compliance, particularly as the COVID-19 positivity rates increase, and the New York City public schools have closed.
Navigating the complex web of federal, state and local leave options is a challenging task for employers during the COVID-19 pandemic. If you have questions, please contact the authors of this Alert, Philip Davidoff, partner in our New York City office at pdavidoff@fordharrison.com, Jeffrey Douglas, partner in our New York City and Berkeley Heights offices at jdouglas@fordharrison.com, and Jeffrey Shooman, counsel in our New York City and Berkeley Heights offices, at jshooman@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you normally work.