NEW YORK’S EMERGENCY PAID QUARANTINE LEAVE FOR COVID-19 – AN UPDATE

Posted On April 15, 2020  

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>radarNY 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

Employee quarantine:

  • No required paid sick leave
  • Enhanced PFL and disability benefits

Child quarantine:

  • PFL benefits under new quarantine reason

Employers with 1-10 employees and net income greater than $1M

Employers with 11-99 employees

Employee quarantine:

  • 5 calendar days of sick leave paid by employer
  • Enhanced PFL and disability benefits

Child quarantine:

  • PFL benefits under new quarantine reason

Employers with 100 or more employees

Public employers of any size

Employee quarantine:

  • 14 calendar days of sick leave paid by employer
  • No enhanced PFL/disability benefits

Child quarantine:

  • PFL benefits under new quarantine reason
 

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 wageThere 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 Obtaining an Order 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.

Other details.

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.

 

NEW YORK ADDS LEAVE LAW FOR VICTIMS OF DOMESTIC VIOLENCE

Posted On September 30, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

September 30, 2019

 

Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence.  With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking. 

We previously wrote about these laws here.  

Key provisions of the New York law are summarized below:

Covered employees. “Victim of domestic violence” means:

  • any person over the age of sixteen;
  • any married person; or
  • any parent accompanied by his or her minor child or children

. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND

  • such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
    or emotional harm to such person or such person’s child;  and
  • such act or acts are or are alleged to have been committed by a family or household member.

View the New York Human Rights Law amendments HERE.

There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.

Leave reasons.  Victims may take a reasonable amount of time off for the following reasons:   

  • Seeking medical attention for injuries caused by domestic violence, including for a child who is a victim of
    domestic violence, provided that the employee is not the perpetrator of the domestic violence against
    the child; or
  • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic
    violence; or
  • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for
    a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the
    domestic violence against the child; or
  • Participating in safety planning and taking other actions to increase safety from future incidents of
    domestic violence, including temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation
    to the incident or incidents of domestic violence.

Undue hardship.  An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as: 

  • The overall size of the business, program or enterprise with respect to the number of employees, number
    and type of facilities, and size of budget; and
  • The type of operation in which the business, program, or enterprise is engaged, including the composition
    and structure of the workforce.

Paid time off and benefits.  The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy.  Any absence not covered by such paid time off may be without pay.  The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences. 

Employee notice and documentation.  An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances.  The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off. 

Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible.  In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of
    domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or
    counselor that the employee or his or her child was undergoing counseling or treatment for physical
    or mental injuries or abuse resulting in victimization from an act of domestic violence.

Other provisions.

Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.

If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)

The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave. 

MATRIX CAN HELP!   At Matrix we administer these domestic violence and sexual assault laws.  We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy.  In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico.  We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

NEW YORK ADDS ORGAN DONATION TO STATE PAID FAMILY LEAVE REASONS

Posted On November 12, 2018  

November 12, 2018

 

Last month we addressed some leave of absence bills pending in various state legislatures.  New York’s governor has signed one of these bills into law, adding organ and tissue donation to the definition of “serious health condition” under the New York Paid Family Leave law (NY PFL).

Specifically, a serious health condition will now include “transplantation preparation and recovery from surgery related to organ or tissue donation.”  NY PFL only applies to leave to care for a family member with a serious health condition and other family leave reasons, so this will not affect employees’ own disability leaves. The law does not make any additional changes to the NY PFL, but it does include a prohibition against discrimination in the provision of life, accident, health, and long term care insurance based on the status of an insured as a living organ or tissue donor.

Definitions of “organ” and “tissue” are incorporated from the NY Public Health Law as follows:

4. “Organ” means a human kidney, heart, heart valve, lung, pancreas, liver or any other organ designated by the commissioner in regulation in consultation with the transplant council.

10. “Tissue” means a human eye, skin, bone, bone marrow, heart valve, spermatozoon, ova, artery, vein, tendon, ligament, pituitary gland or a fluid other than blood or a blood derivative.

What impact will this law have on family care leaves under NY PFL? Perhaps very little. Under NY PFL an employee is already entitled to take paid time off to care for certain family members with a serious health condition. This term is defined to include an illness, injury, impairment, or physical or mental condition that involves:

(1) inpatient care in a hospital, hospice, or residential health care facility; or

(2) three days of incapacity due to a medical condition and continuing treatment or supervision by a health care provider

It is hard to imagine a situation where an employee’s family member is an organ or tissue donor that doesn’t already satisfy one or both of these definitions of serious health condition.   As a result, there is not likely to be much, if any, increase in use of NY PFL to care for a family member due to this new law.

The text of the law can be accessed through a link on this page.   The new law goes into effect on February 3, 2019.

 

Matrix Can Help!

At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and other business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

NEW YORK MAKES PAID FAMILY LEAVE “NOTICE TO EMPLOYEES” AVAILABLE

Posted On November 14, 2017  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

November 14, 2017

 

Section 380-7.2.e. of the New York Paid Family Leave law requires employers to post a notice to employees of their rights under the law:

Every covered employer must display or post, and keep posted, a typewritten or printed notice concerning PFL in a form prescribed by the Chair.  The notice must be displayed in plain view where all employees and/or applicants can readily see it.

The state has now issued form PFL-120 for employers to use for this purpose.  It can  be obtained by sending an email to certificates@wcb.ny.gov.

For more information about New York Paid Family Leave, check out our previous blog posts:  October 2017,  October 2017, August 2017, July 2017, May 2017, March 2017, and April 2016.

 

TAX IMPLICATIONS OF NEW YORK PAID FAMILY LEAVE ADDRESSED

Posted On August 28, 2017  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

August 28, 2017

 

 

The state of New York has released much-needed guidance on the tax implications of employee premium contributions and benefits under the state’s new Paid Family Leave (PFL), slated to go into effect on January 1, 2018.  According to the New York Department of Taxation and Finance:

Benefits paid to employees will be taxable non-wage income that must be included in federal gross income.

Taxes will not automatically be withheld from benefits; employees can request voluntary tax withholding.

Premiums will be deducted from employees’ after-tax wages.

Employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld.

Benefits should be reported by the State Insurance Fund on Form 1099-G and by all other payers on Form 1099-MISC.

The Department released this guidance upon consideration of applicable state and federal laws and regulations, and after consultation with the federal Internal Revenue Service (IRS).  The Department warns, however, that every employee, employer and insurance carrier should consult with its own tax advisor.

The Department’s Notice can be found here:  https://www.tax.ny.gov/pdf/notices/n17_12.pdf.

We have written about the New York Paid Family Leave law in previous blog posts in July 2017, May 2017, March 2017, and April 2016.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.