PUBLICATIONS

On March 18, 2020, New York State Governor Andrew M. Cuomo signed a bill that guarantees emergency paid sick leave and job protections for individuals who have been quarantined as a result of the Coronavirus, or COVID-19. It does not include permanent paid sick leave, which the draft had included. The revised bill is effective immediately, making it critical that all employers are aware of its provisions and their obligations under the bill.

Additionally, on March 18, 2020, Governor Cuomo also signed an Executive Order (“EO”) requiring all employers to reduce their in-person workforce at any work locations by 100%. The EO becomes effective on March 20, at 8 p.m.

This Alert discusses the provisions of the final bill and the EO.

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 as follows:

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.

Paid or unpaid sick leave provided pursuant to this law must be provided without the loss of an employee’s accrued sick leave.

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, the local board 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. Such employees are ineligible for both paid and unpaid sick leave.

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.

100% OF NONESSENTIAL WORKFORCE MUST STAY HOME OR WORK REMOTELY

The EO requires all employers to reduce their in-person workforce at any work locations by 100%. by March 20, at 8 p.m.

This is not a mandate for employers to terminate 100% of their workforce. Rather, as the EO makes clear, employers are expected to utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize.

The EO exempts essential businesses or entities providing essential services or functions. The list of such essential businesses or entities includes essential health care operations, essential infrastructure (such as utilities and telecommunications), essential food processing and pharmaceuticals, essential retail such as grocery stores and pharmacies, banks and related financial institution, and trash collection, mail, and shipping services.

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, 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.