PUBLICATIONS

On March 17, 2020, New York State Governor Andrew M. Cuomo announced an agreement with the state legislature on a bill guaranteeing unpaid and paid sick leave and job protection for individuals who have been quarantined as a result of the Coronavirus, or COVID-19.

The bill also provides for permanent paid sick leave benefits that extend to all employees. This aspect of the bill imposes obligations on employers throughout New York State similar, but not identical, to those currently imposed on employers in New York City under its Earned Sick and Safe Time Act (ESSTA).

The state legislature is expected to approve the bill, which will then have to be signed by Governor Cuomo to become law. The provisions of the bill will take effect immediately upon passage.

This Alert discusses the provisions of the bill so that employers can take quick action once the bill is signed.

PAID AND UNPAID SICK LEAVE PROVISIONS TO ADDRESS COVID-19

To address the immediate concern for employees who have been quarantined or are isolated as a result of COVID-19, the bill provides the following:

1. Employers with 10 or fewer employees and a net income of less than one million in the previous tax year must provide quarantined or isolated employees with unpaid sick leave until the termination of any mandatory or precautionary quarantine or isolation order due to COVID-19. During this period, such employees are eligible for New York State Paid Family Leave and disability benefits.
2. Employers with (i) between 11 and 99 employees, or (ii) 10 or fewer employees and a net income of greater than one million dollars in the previous tax year, must provide quarantined or isolated employees at least five days of paid sick leave, followed by unpaid leave until the termination of any mandatory or precautionary quarantine or isolation order due to COVID-19. After five days of paid sick leave, such employees may be eligible for New York State Paid Family Leave and disability benefits.
3. Employers with 100 or more employees must provide quarantined or isolated employees with at least 14 days of paid sick leave during any mandatory or precautionary order of quarantine or isolation due to COVID-19. Although not specified, the job protection provisions of the bill support that, after 14 days of paid sick leave, employers must provide such employees with unpaid sick leave until the termination of any mandatory or precautionary quarantine order due to COVID-19.

The size of the employer is based on the employer’s workforce as of January 1, 2020. Employees who are under a “mandatory or precautionary order of quarantine or isolation” are those employees who have been quarantined or isolated as a result of an order issued by the state of New York, the department of health, or any other government entity authorized to issue such an order due to COVID-19. Employees under self-quarantine or practicing voluntary “social distancing” are not covered.

The bill also requires public employers (such as a school district or New York state government agency) to provide sick leave benefits to their employees.

Exceptions from Paid Sick Leave for Quarantined or Isolated Employees

The bill’s paid sick leave provisions for quarantined or isolated employees do not apply to:

1. Employees who have (i) returned to the United States after traveling to a country for which the Centers for Disease Control and Prevention has a level two or three travel health notice, (ii) travel to that country was not taken as a part of the employee’s employment or at the direction of the employee’s employer, and (iii) were provided notice of the travel health notice and the bill’s exception prior to such travel. While employees in this category are exempt from the bill’s paid sick leave provisions, they are still eligible to use accrued leave provided by the employer, after which the employee must be provided with unpaid sick leave until the termination of any mandatory or precautionary order of quarantine or isolation.
2. Employees who have been deemed asymptomatic or have not yet been diagnosed with any medical condition and are physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.

JOB PROTECTION PROVISIONS TO ADDRESS COVID-19

In addition to paid sick leave, the bill also provides job protection for employees under a mandatory or precautionary order of quarantine or isolation and requires employers of all sizes to restore an employee to the job position the employee held prior to taking leave pursuant to the bill. The employee must be reinstated with the same pay, terms and conditions of employment as the employee had prior to being quarantined or isolated.

Employers are also prohibited from discharging, threatening, penalizing, discriminating or otherwise retaliating against any employee because the employee has taken leave pursuant to the bill.

As a general matter, employers can still make employment decisions, including laying off employees, based on legitimate business reasons. However, before doing so, employers should consult with their employment law counsel to ensure that they do not run afoul of the bill’s anti-retaliation provisions.

PERMANENT PAID SICK LEAVE PROVISIONS

The bill also amends the New York Labor Law permanently by providing unpaid and paid sick leave as follows:

1. Employers with four or fewer employees must provide their employees with up to 40 hours of unpaid sick leave in each calendar year.
2. Employers with (i) five and 99 employees, or (ii) four or fewer employees and a net income of greater than one million dollars in the previous tax year, must provide their employees with up to 40 hours of paid sick leave in each calendar year.
3. Employers with 100 or more employees must provide each employee with up to 56 hours of paid sick leave in each calendar year.

Sick Leave Accrual Rate

Beginning on the first day of employment or the effective date of the bill, whichever is later, employees accrue sick leave at a rate of one hour per every 30 hours worked. Employers may also choose to frontload all of the required sick leave to their employees.

Use of Sick Leave

An employer may set a reasonable minimum increment for the use of sick leave, not exceeding four hours. Unused sick leave carries over to the following calendar year, provided that an employer with fewer than 100 employees may limit the use of sick leave up to 40 hours per calendar year, and an employer with 100 or more employees may limit the use of sick leave up to 56 hours per calendar year.

Employers are not required to pay an employee for unused sick leave upon an employee’s termination, resignation, retirement, or other separation from employment.

Qualifying Reasons for Leave

Sick leave may be used for the following reasons:

1. For a mental or physical illness, injury, or health condition of the employee or the employee’s family member, regardless of whether it is diagnosed or requires medical care at the time the employee requests such leave.
2. For the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, an employee or the employee’s family member.
3. For an absence from work relating to domestic violence, a sexual offense, stalking, or human trafficking.

Other Provisions

The permanent paid sick leave provisions also include job protection and anti-retaliation provisions that prohibit employers from discharging, threatening, penalizing, or otherwise retaliating against an employee for requesting or using unpaid or paid sick leave.

If you have any questions regarding this Alert, please feel free to contact any member of the Coronavirus taskforce or the Alert’s authors, Philip Davidoff, pdavidoff@fordharrison.com, Bran Noonan, bnoonan@fordharrison.com, and Mohammad Shihabi, mshihabi@fordharrison.com.

FordHarrison is closely monitoring the spread of Coronavirus and has implemented continuity plans, including the ability to work remotely in a technologically secure environment when necessary, to ensure continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce page for the latest FH Legal Alerts and webinars on Coronavirus, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce attorney, please contact clientservice@fordharrison.com.