On March 18, 2020, at Governor Andrew Cuomo’s behest, New York State passed an emergency law that extends paid leave and additional employment protections and benefits immediately to employees involuntarily quarantined in connection with COVID-19.
An initial version of the bill also included paid sick leave provisions that were not directly related to the COVID-19 pandemic and were scheduled to take effect January 1, 2021. Those provisions have been stricken from the emergency law but are expected to be passed in separate legislation.
Paid Quarantine Leave
Under the new law, employers are required to provide paid (with narrow exceptions) and protected sick leave to employees who are subject to mandatory or precautionary orders of quarantine or isolation due to COVID-19.
A qualifying quarantine under the law must be a mandatory or precautionary quarantine order issued by a government agency or board of health. The quarantine leave available to an employee will depend on the size and income of the employer, as follows:
- For employers with 10 or fewer employees as of January 1, 2020, and net income of $1 million or less in the previous tax year, eligible employees will be entitled to unpaid leave until the quarantine order is lifted.
- For employers with (i) 10 or fewer employees as of January 1, 2020, and net income of greater than $1 million in the previous tax year, or (ii) between 11 and 99 employees as of January 1, 2020, eligible employees will be entitled to 5 days of paid quarantine leave and unpaid leave thereafter until the quarantine order is lifted.
- For employers with (i) 100 or more employees as of January 1, 2020, or (ii) public employers, eligible employees will be entitled to 14 days of paid leave.
Quarantine leave will be protected insofar as the law requires employees returning from such leave to be returned to the same position, pay, and terms and conditions of employment as prior to such leave. It is unclear from the law whether such protections would extend after an employee has exhausted his or her paid leave but remains subject to a mandatory or precautionary quarantine order.
Further, the new law provides that paid quarantine leave must be granted without any loss of an employee’s accrued sick leave benefits. It is unclear if the law’s reference to “accrued sick leave” in this context refers only to benefits mandated by law or also to benefits provided under an employer’s policy.
Paid Family Leave and Disability Benefits
The emergency law also expands entitlement to statutory New York State Paid Family Leave (PFL) and benefits under the Disability Benefits Law (DBL) during the period of mandatory quarantine or isolation.
Under the existing PFL regime, virtually all private employers in New York are required to provide paid family leave benefits to eligible employees by purchasing a PFL policy or electing to self-insure. PFL benefits are usually employee-funded and available only for time off needed to care for family members, not for an employee’s personal illness. DBL benefits, in contrast, are available only in the event of an employee’s leave due to personal injury or illness. The emergency law expands eligibility for those benefits and increases the amount of DBL benefits available, essentially tapping into those insurance funds and self-insured reserves to provide additional relief to employees affected by mandatory or precautionary quarantine orders.
Eligible employees of private employers with fewer than 100 employees will be entitled to PFL and enhanced DBL benefits for any days of a quarantine for which they are not entitled to receive paid quarantine leave. The law is silent on whether employees of employers with 100 or more employees may be eligible for such statutory benefits. Employees who are eligible for PFL and/or DBL benefits may begin collecting such benefits on their first day of quarantine leave, if not otherwise entitled to paid leave; the usual waiting period is eliminated for purposes of the emergency law.
Significantly, eligible quarantined employees are also entitled to collect PFL and DBL benefits concurrently (which is otherwise prohibited under current law), up to 100 percent of their average weekly wages for those earning up to $150,000 per year, subject to weekly limits of $840.70 (PFL) and $2,043.92 (DBL). The definition of “maximum weekly benefit” under the DBL is temporarily and significantly increased from $170.00 to $2,043.92 per week for this purpose.
Exceptions to Quarantine Leave and Statutory Benefits
The law contains two important carve-outs, for:
- asymptomatic employees under quarantine who have the ability to continue working by remote access or otherwise are not eligible for benefits; and
- employees who are quarantined due to voluntary travel to high-risk countries, as defined in the statute. Such employees are, however, entitled to unpaid sick leave and use of accrued benefits during the period of quarantine or isolation.
In addition, employers may not apply the law in a manner that diminishes rights under a collective bargaining agreement (CBA). In other words, if an employee is entitled to greater rights under a CBA, then the CBA controls with respect to such rights.
Finally, employees eligible for benefits under the federal Families First Coronavirus Response Act (FFCRA) will be entitled only to the difference—if any—between the federal benefits and the benefits that employees would have received as described above.
There are still many unknowns regarding the law’s quarantine leave provisions, which were hastily drafted. The New York State Department of Labor (NYSDOL) is authorized to promulgate emergency regulations and issue guidance under this legislation. We will be monitoring any actions by the NYSDOL and will provide further details as they become available.
Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.