New Federal and New York State laws have recently been passed aimed at providing employees paid sick time and other leave relative to the inability to work related to the COVID-19 pandemic.
The Families First Coronavirus Response Act (“FFCRA”) is Federal legislation that includes an expansion of the FMLA by adding a new qualifying event, such that the FMLA leave is available where the employee is unable to work (including telework) due to a child’s school or daycare closure due to COVID-19. This legislation became effective on April 1, 2020 and expires on December 31, 2020. Covered employers are those with fewer than 500 employees (although the US DOL may issue regulations exempting employers with fewer than 50 employees where such leave “would jeopardize the viability of the business as a going concern”). Further, such employee must have been employed by the employer for at least 30 days. Under the FMLA, the first 10 days of leave can be unpaid, but the employee may elect to use PTO during this time period. The employer must pay the employee two-thirds of the employee’s regular pay for the next ten weeks of the leave. Pay is prorated based on the number of hours the employee would have worked and is capped at $200 per day ($10,000 in the aggregate) per employee. Generally, an employee may only take one 12-week leave period during a year, although a “year” may be calculated differently for some employers. The employer is required to collect and retain documentation supporting the reason for the leave.
The FFCRA also encompasses the Emergency Paid Sick Leave Act (“EPSL”), which has the same effective and expiration dates noted above. The EPSL applies to private employers with fewer than 500 employees (as well as public agencies and non-private entities of any size), and is available where the employee cannot work or telework because (1) that employee is subject to a quarantine order due to COVID-19 (general stay at home orders do not qualify), (2) a health care provider advises the employee to self-isolate due to COVID-19 concerns, (3) the employee has COVID-19 symptoms and is seeking a medical diagnosis of the same, (4) the employee is caring for someone that falls into categories 1-2, (5) the employee is caring for his/her child whose school or day care is closed, or (6) the employee is experiencing a substantially similar condition specified by the Secretary of Health and Human Services. Sick leave under the EPSL is for two weeks and must be paid at the greater of the employee’s regular rate of pay or the applicable minimum wage, but is capped at $511 per day and $5,110 in the aggregate per employee; provided, however, that if the reason for the leave is due to the reasons set forth in numbers 4-6 above, the sick leave pay is two-thirds of the greater of employee’s regular rate of pay or the applicable minimum wage, and capped at $200 per day and $2,000 in the aggregate per employee. Employers may not require employees to use PTO prior to using this paid sick leave. There is no minimum amount of time/days worked for the EPSL to be applicable to employees. The two weeks of paid leave under the EPSL and the twelve weeks available under the FMLA run concurrently; therefore, an employee may receive payments under the EPSL for two weeks, then payments under the expanded FMLA for an additional 10 weeks.
Notably, employees are only eligible for benefits under EPSL or the expanded FMLA if their employer has work available for them to do. Meaning, if employees are laid off or otherwise sent home without work or if a worksite closes, they are not entitled to either EPSL or FMLA benefits.
Note also that if exempt (salaried) employees are working, including employees that are working remotely, they must be compensated at their full salary in any work week in which they perform any work, even if such employee is only working a few hours checking emails from home.
An employee taking leave under the EPSL or the expanded FMLA is entitled to maintain his or her employer-provided health care coverage on the same terms as in effect prior to commencing the leave, including the premium cost sharing between the employee and the employer.
The FFCRA provides for special exceptions to these rules for certain health care providers and emergency responders.
The New York State legislation, which is currently in effect, provides leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by NYS, the Department of Health, a local board of health, or any other authorized governmental entity due to COVID-19. This only applies if such employee is unable to work/telework while under the quarantine/isolation order. New York State does not have an exclusion for large employers like the FFCRA does. Requirements under the state legislation are dependent on the number of employees and net income of the employer. Private employers with:
- Ten or fewer employees and income of $1 million or less (in the previous tax year) are required to provide unpaid sick leave until the termination of the quarantine/isolation order;
- Ten or fewer employees and net income over $1 million (in the previous tax year) are required to provide at least five (5) days of paid sick leave, followed by unpaid sick leave until the termination of the quarantine/isolation order;
- Between 11 and 99 employees, regardless of income, are required to provide at least five (5) days of paid sick leave, followed by unpaid sick leave until the termination of the quarantine/isolation order; and
- One hundred or more employees are required to provide at least fourteen (14) days of paid sick leave, followed by unpaid sick leave until the termination of the quarantine/isolation order.
Public employers have separate requirements.
Employees of private employers may, during unpaid portions of leave, apply for disability benefits and paid family leave benefits (“PFL”) from their employer’s insurance carrier and are available concurrently without a waiting period. The new law also expands the qualifying events for New York’s PFL to include leave taken to care for a child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by NYS, the DOH, a local board of heath or any other authorized governmental entity due to COVID-19. However, employers are not required to provide paid leave for this qualifying event; rather, the normal maximum PFL benefit of $840.70 per week applies.
There are exceptions to this law for employees that have returned to the US from travel to a country for which the CDC had issued certain level travel notices.
Further, New York employers cannot take advantage of the caps set forth in the Federal legislation for employees subject to a quarantine/isolation order; rather, such employers must provide employees with paid sick leave at the level set forth in state law.
Being an essential business does not alter the amount of leave you are required to provide.
If you have any questions regarding any issues related to the Coronavirus pandemic, please contact any attorney at Evans Fox LLP. We stand with you during this unprecedented and difficult time.