by Marti Cardi, Esq. – Vice President Product Compliance
April 15, 2020
On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for employees affected by COVID-19 who are subject to mandatory or precautionary orders of quarantine or isolation. The law was effective immediately.
We originally posted a summary of the New York law on March 19. There are still some open questions and no regulations, but the dust is settling somewhat so we provide this updated post with today’s best information about the New York law. Many thanks to Kimberly Dunn, my colleague at Reliance Standard Life Insurance, for her review and valuable input on this update – keeping me straight and accurate!
Here are the specifics:
Covered employees. All employees are covered; no eligibility requirements for paid sick leave; regular eligibility requirements for paid family leave and disability benefits.
Covered employers. All employers are covered.
Leave reasons. Despite being called “paid sick leave” the New York law does not provide any paid leave for illness, COVID-related or otherwise. Rather, employers are required to provide paid leave for absences due to a COVID-19-related mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any governmental entity duly authorized to issue such order due to COVID-19. An order from a medical provider to stay home or in quarantine will not suffice.
Amount and type of benefits: The law provides 3 types of paid leave and benefits. Availability of the benefits depends on employer size (and in some cases, net worth), and whether the employee or a dependent minor child is the subject of the quarantine order. However, benefits are not available if the employee is able to work during the quarantine through remote access or through other means. The type of benefits are:
- Paid “sick” leave, paid directly by the employer;
- Enhanced combination of statutory paid family leave (PFL) and disability benefits; and
- Regular PFL benefits with an added leave reason relating to quarantines.
Employers with 1-10 employees and net income less than $1m
Employers with 1-10 employees and net income greater than $1M
Employers with 11-99 employees
Employers with 100 or more employees
Public employers of any size
Enhanced PFL/disability benefits. After using the mandated paid leave (if any), employees of the smaller employers (1-99 employees) can apply for enhanced New York PFL and disability benefits for the employee’s own order of COVID-19 quarantine (not a child’s order). These enhanced benefits consist of:
- PFL benefits paid at 60% of wages, up to a maximum of $840.70 per week and
- Disability benefits paid simultaneously, up to $2,043.92 per week
Total combined maximum weekly benefit of $2,884.62, but capped at 100% of the employee’s actual average weekly wage. There is no waiting period for these enhanced PFL/disability benefits.
Measuring 5 or 14 days. During a covered quarantine leave the employee is entitled to pay for the number of days the employee would normally work in 5 or 14 calendar days. For example, an employee who works for a company with 60 employees is entitled to 5 calendar days of paid leave. If that employee works a regular Monday-Friday work week and starts a quarantine leave on a Thursday, that employee would get 3 days of pay: Thursday, Friday, and Monday.
The order of quarantine. The “mandatory or precautionary order of quarantine” required for the NY COVID paid sick leave and enhanced DBL/PFL benefits must be issued by state of New York, the Department of Health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19. The order must be “individualized” meaning that it must be directed specifically to the employee or employee’s minor dependent child. Gov. Cuomo’s order for nonessential workers to work from home/shelter in place (“pause”) does NOT qualify.
The employee is responsible for providing the employer with a copy of the order justifying the quarantine leave. New York has published a document that gives employees directions on how to obtain the relevant order and what to do if an order is not immediately available.
Some normal PFL and disability rules still apply. Employees entitled to the enhanced PFL/disability benefits must still meet the usual eligibility requirements (employees who work 20 or more hours per week: 26 weeks of work for the employer; employees who work fewer than 20 hours per week: 175 days for work for the employer).
In addition, usage of the enhanced PFL/disability benefits counts toward an employee’s entitlement in a 52-week period (10 weeks of PFL in 2020, 26 weeks of disability, combined total of 26 weeks). What is not yet clear is whether use of the enhanced benefits counts as weeks of both PFL and disability. For example if an employee uses 2 weeks of enhanced PFL/disability benefits, does that count as only 2 weeks of benefits total (and if so, do they count toward PFL or disability usage?) or does that count as 4 weeks of benefits total, 2 weeks of PFL and 2 weeks of disability?
Multiple quarantines. The 5 or 14 days of paid leave is a single entitlement. The employer is not required to provide additional paid leave if the employee exhausts her 5 or 14 days and then experiences a subsequent quarantine event. However, any unused time can be carried over to another quarantine event.
On the other hand, all PFL and/or disability benefits are available up to the limitations for use in a 52-week period, so can be used if an employee or the employee’s child is subject to a covered order of quarantine.
Regular statutory disability and PFL benefits. An employee of a larger employer (100 or more employees) does not get enhanced PFL/disability benefits. The employee can, however, apply for regular disability benefits if he is ill with COVID-19 and meets the definition of “disability” under the statute. Likewise, the employee can apply for regular PFL for any of the usual leave reasons, including to care for a family member with a serious health condition.
Note that public employers of any size are not covered employers for purposes of disability and PFL benefits, so unless an entity has opted into coverage, its employees cannot receive these benefits for any purpose.
Determining employer coverage. Employer size is determined by the number of employees the company had on January 1, 2020. This includes all of the company’s employees, not just those in New York. So, an employer could have 750 employees total and only one employee in New York; that one employee would be entitle to the 14 days of paid sick leave. The company’s net income for employers with 1-10 employees is its 2019 net income.
The 5 or 14 days of paid sick leave are in addition to an employee’s other accrued sick leave provided by the employer. The employer cannot require an employee to use other paid leave prior to the new statutory paid sick leave.
The New York paid sick leave will run concurrently with any benefits required by federal law for the same reason (for example, the paid sick leave provided by the Families First Coronavirus Response Act for an employee’s or family member’s order of quarantine). The New York law specifically provides that its benefits are secondary to such federal requirements, so the New York benefits described above serve only as a top-off if needed during an employee’s receipt of federally-required paid leave, up to the limits provide by the New York bill.
Employers of all sizes must provide job-protected leave for the duration of the quarantine, regardless of whether the employee is receiving pay or PFL/disability benefits. Following such leave, the employee must be restored to the position held prior to the quarantine.
In addition to new paid sick/quarantine leave: For PFL leave to care for a family member, the definition of “serious health condition” has been expanded to include specifically a diagnosis of COVID-19. This change is effective for 90 days from March 27, 2020 (until June 25, 2020).
State Website Resources. The state’s new COVID-19 website is quite robust, with lots of information, additional links, and forms:
Matrix can Help!
Something new happens every day in Coronaville! Stay tuned here for more developments and contact your Matrix or Reliance Standard account manager if you have any questions.