Publications

As more and more businesses are temporarily shutting down and employees are being quarantined due to COVID-19 (also referred to herein as “Coronavirus”), federal and New York State lawmakers have enacted legislation providing paid leave to affected employees who are unable to work due to certain reasons related to Coronavirus. On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act, H.R. 6201, and Governor Andrew Cuomo signed a sick leave bill for employees under quarantine due to Coronavirus. The following is a summary of select parts of the federal Families First Coronavirus Response Act, including the paid leave provisions, and the New York State legislation.

Federal Legislation

Emergency Family and Medical Leave Expansion Act

• The Act applies to private employers with less than 500 employees and certain covered public sector employers. Note that employers covered by a collective bargaining agreement are subject to separate rules.
• Eligible employees are those who have been employed by the employer for at least 30 calendar days.
• The Act provides up to 12 weeks of job-protected leave where an employee is “unable to work (or telework)” due to a need for leave to care for the employee’s minor child whose school or child care provider (i.e., one that receives compensation for providing child care services on a regular basis) is closed or unavailable due to a “public health emergency” – meaning an emergency with respect to COVID-19 declared by a federal, state, or local authority.
• The first 10 days of leave can be unpaid, but the employee may elect to use any available vacation, personal, or medical or sick leave during and concurrently with such unpaid period.
• After the first 10 days of leave, employers must provide paid leave for the remainder of the 12 weeks at two-thirds of the employee’s regular rate of pay and based on the number of hours the employee would normally be scheduled to work. However, the required paid leave is limited to $200 per day and $10,000 in the aggregate.
• With respect to employees with varying work schedules, employers should look back six months to determine the average number of hours an employee was scheduled to work per day, or, if the employee has not worked for six months, employers should use the average number of hours the employee, as of the time of hire, reasonably expected to work each day.
• The leave is generally job-protected, meaning employers must restore employees to the same position (or an equivalent position with comparable pay and terms of employment). However, there is an exception for employers with less than 25 employees where the employee’s position no longer exists due to economic conditions or other changes in the employer’s operating conditions that are caused by COVID-19, provided that the employer meets certain other conditions (such as making reasonable efforts to restore the employee to an equivalent position or contacting the employee about other positions as they become available).
• If the need for emergency FMLA leave is foreseeable, the employee must provide the employer with notice of such leave “as is practicable.”
• Employees of health care providers and emergency responders may be excluded from the provisions of the emergency FMLA legislation at the election of their employer or by determination of the Secretary of Labor.
• The Secretary of Labor may exempt small businesses with fewer than 50 employees when such requirements would “jeopardize the viability of the business as a going concern.”
• There is no private right of action for employees against an employer that does not have 50 or more employees on payroll for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
• The law takes effect April 1, 2020, and expires on December 31, 2020.

The legislation does not mention whether emergency FMLA leave is available on an intermittent basis. Although it is not entirely clear, such an omission would appear to indicate that intermittent emergency FMLA leave is not available. Moreover, the legislation does not specifically address whether an employee who has already exhausted or used any portion of their 12 weeks of FMLA leave is eligible for an additional 12 weeks of emergency FMLA leave.

Emergency Paid Sick Leave Act

• The Act applies to private employers with less than 500 employees and certain covered public sector employers. Note that employers covered by a collective bargaining agreement are subject to separate rules.
• Emergency paid sick time is available to employees for immediate use, regardless of how long the employee has worked for the employer.
• It provides paid sick time to employees who are unable to work (or telework), and who are absent from employment, due to a need for leave for one or more of the following reasons:
  • 1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • 2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • 3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • 4) The employee is caring for an individual who is subject to a quarantine or isolation order or who is advised by a health care provider to quarantine.
  • 5) The employee is caring for the employee’s son or daughter whose school or child care provider closed or is unavailable due to COVID-19 precautions.
  • 6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
• Full-time employees are eligible for up to 80 hours of sick time, and part-time employees are eligible for a number of hours of sick time equal to the average number of hours such employee works over a 2-week period.
• Sick time is paid at the employee’s regular rate of pay and based on the hours the employee is otherwise normally scheduled to work, capped at $511 per day and $5,110 in the aggregate, for reasons (1), (2), and (3) above. Sick time is paid at two-thirds of the employee’s regular rate of pay and is based on the hours the employee is otherwise normally scheduled to work, capped at $200 per day and $2,000 in the aggregate, for reasons (4), (5), and (6) above.
• With respect to part-time employees with varying work schedules, employers should look back six months to determine the average number of hours an employee was scheduled to work per day, or, if the employee has not worked for six months, employers should use the average number of hours the employee, as of the time of hire, reasonably expected to work each day. Note the Secretary of Labor is directed to promptly issues guidelines to assist employers in properly calculating the amount of paid sick time.
• The Secretary of Labor may exempt small businesses with fewer than 50 employees from having to comply with reason (5) above when such requirements would “jeopardize the viability of the business as a going concern.”
• Employers may not require employees to use other paid sick leave provided by the employer before the employee uses this emergency paid sick time. In addition, employees may not be required to search for or find a replacement as a condition for using their emergency paid sick time.
• After the first workday (or portion thereof) an employee receives emergency paid sick time, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.
• An employee’s paid sick time ceases “beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time,” which appears to restrict an employee’s ability to use emergency paid sick time on multiple or different occasions.
• Emergency paid sick time is not carried over from one year to the next, and it is not paid out upon separation of employment.
• The Secretary of Labor will prepare and make publicly available a poster setting forth the emergency paid sick time requirements, which employers will be required to display in a conspicuous place on the employer’s premises.
• Employers are prohibited from discriminating or retaliating against employees for taking emergency paid sick time or enforcing their rights under this law.
• Employees of health care providers and emergency responders may be excluded from the provisions of the emergency paid sick time act at the election of their employer or by determination of the Secretary of Labor.
• An employer who fails to provide emergency paid sick time will be considered to have failed to pay minimum wages under the federal Fair Labor Standards Act, which implicates significant penalties.
• The law takes effect April 1, 2020, and expires on December 31, 2020.

Tax Credits

The federal legislation also provides for refundable tax credits, subject to certain limitations, for employers that must offer emergency FMLA or paid sick leave to their employees. These tax credits are not available to employers that are not subject to the emergency FMLA and paid sick time requirements.

New York State Legislation

Paid Sick Leave Due to COVID-19

• The law provides sick leave for employees who are subject to mandatory or precautionary orders of quarantine or isolation issued by the State of New York, the New York Department of Health, a local board of health, or any governmental entity authorized to issue such an order due to COVID-19.
• The amount of sick leave and whether it is paid depends on the size of the employer as of January 1, 2020, and the employer’s net income as follows:
  • Employers with 10 or fewer employees must provide unpaid sick leave until termination of any mandatory or precautionary order of quarantine. During such period of quarantine, employees will have eligibility for New York paid family leave and short-term disability benefits (capped at $840.70 per week for paid family leave and $2,043.92 per week for short-term disability).
  • Employers with 10 or fewer employees and a net income of greater than $1 million in the previous tax year must provide five days of paid sick leave and unpaid leave thereafter for the duration of the quarantine. After the five days of paid sick leave, employees will have eligibility for New York paid family leave and short-term disability benefits (capped at $840.70 per week for paid family leave and $2,043.92 per week for short-term disability).
  • Employers with between 11 and 99 employees must provide five days of paid sick leave and unpaid leave thereafter for the duration of the quarantine. After the five days of paid sick leave, employees will have eligibility for New York paid family leave and short-term disability benefits (capped at $840.70 per week for paid family leave and $2,043.92 per week for short-term disability).
  • Employers with 100 or more employees must provide 14 days of paid sick leave.
• Note there are different rules for public employers.
• Paid sick leave is not available for employees who traveled to a country for which the Centers for Disease Control and Prevention (CDC) has issued a level two or three travel health notice and such travel was not taken as part of the employee’s employment or at the employer’s direction, and if the employee was provided notice of the CDC travel restrictions. Such an employee would be limited to other accrued leave provided by the employer or unpaid sick leave for the duration of the employee’s quarantine.
• The law does not apply to employees who are asymptomatic or have not yet been diagnosed with any medical condition and are physically able to work during the quarantine through remote access or similar means.
• The leave is job-protected, meaning employees must be restored to their original position with the same pay and other terms and conditions of employment.
• Employers are prohibited from discriminating or retaliating against employees for taking paid sick leave under the law.
• The Commissioner of Labor is charged with adopting regulations and issuing guidance under this law, which may include standards for use of sick leave, payment, and employee eligibility.
• These provisions take effect immediately (i.e., as of March 18, 2020).

The New York State legislation specifically provides that its provisions regarding paid sick leave and other benefits due to COVID-19 will not be available if the federal government provides sick leave and/or employee benefits for employees related to COVID-19. However, if the benefits under the New York legislation are more favorable than those under federal law, then New York employees will be able to claim the additional sick leave and/or benefits under the New York law in an amount equal to the difference between the New York benefits and federal benefits.

Moreover, New York State is considering provisions for paid sick leave for purposes unrelated to COVID-19, which, if enacted, will take effect 180 days after the legislation is enacted. We will address the requirements regarding such general paid sick leave benefits in a later employment note.

New York City and Westchester County Employers

As a reminder, employees working in New York City and Westchester County generally accrue up to 40 hours of paid sick leave per calendar year under the NYC Earned Safe and Sick Time Act and the Westchester County, New York Earned Sick Leave Law, respectively, which may apply to certain Coronavirus-related circumstances. NYC and Westchester County employers with less than five employees must allow their employees to accrue up to 40 hours of unpaid sick leave.

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There is no question that myriad leaves and benefits laws may be implicated due to an employee’s time off from work for reasons related to Coronavirus, particularly now with the enactment of these new federal and New York State laws. Accordingly, the new legislation has created many unanswered and challenging questions, including, for example, how the new laws will coexist with existing leaves and benefits laws, and how the legislation will apply to non-traditional workforces.

Even with these new laws now in place, the implications of the Coronavirus pandemic remain fluid and are rapidly developing. For instance, Congress is already considering yet another bill that could impact the rights and obligations of employers. Therefore, employers must carefully and regularly monitor developments and assess each situation to ensure that the proper leaves and benefits are applied and they are complying with their obligations to their employees.

For more information regarding the topic discussed, please contact any member of Tannenbaum Helpern’s Employment Law practice or your usual Tannenbaum Helpern contact.

For more information on the topic discussed, contact:

• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792