Enactment of New York Coronavirus Quarantine Order Benefits Legislation

In response to the COVID-19 pandemic—which has necessitated local governments to issue shelter-in-place (or stay-at-home) orders that have impacted workers and families in New York and across the world—New York State Governor Andrew Cuomo signed emergency paid sick leave and other coronavirus-driven benefits legislation into law on March 18, 2020 (the “Emergency NY Act” or the “Act”).

Emergency Paid Sick Leave
The Act provides for additional paid and unpaid sick leave as well as an expansion of New York’s paid family leave (“PFL”) and disability benefits programs to employees who are “subject to a mandatory or precautionary order of quarantine or isolation” due to COVID-19. But an employee who is “deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while” under the order of quarantine or isolation (i.e., through a work-from-home arrangement) is not eligible for any benefits under this Act.

Under this law, employers with ten (10) or fewer employees as of January 1, 2020, and a net income of $1 million or less, must provide unpaid sick leave for the entire employee quarantine or isolation period. Employees also will be eligible for PFL and disability benefits.

Employers sized ten (10) or fewer employees as of January 1, 2020, with a net income greater than $1 million, must provide five (5) days of paid sick leave, and unpaid leave for the remainder of the employee quarantine or isolation period. After exhausting the five (5) days of paid sick leave, employees would then become eligible for PFL and disability benefits.

Employers with 11-99 employees as of January 1, 2020, must provide at least five (5) days of paid sick leave, and unpaid leave through the end of the employee quarantine or isolation period. After five (5) days of paid sick leave, employees are eligible for PFL and disability benefits.

Employers with 100 or more employees as of January 1, 2020, must provide at least 14 days of paid sick leave.

Employees who knowingly traveled to a CDC-designated Level-Two or Level-Three country by choice (and not as part of the employee’s employment), despite recommendations against such travel, are not eligible for benefits under the Emergency NY Act. Instead, such employees can take accrued paid leave or unpaid sick leave for the period of the quarantine.

PFL and Disability Benefits
Under the Emergency NY Act, the definitions of “family leave” and “disability” now include COVID-19-related issues. For example, “family leave” incorporates the need to take leave when the employee is subject to a mandatory or precautionary order of quarantine or isolation, or when the employee must care for a minor dependent child who is subject to a mandatory or precautionary order of quarantine or isolation. “Disability” incorporates the inability of the employee to work because of a mandatory or precautionary order of quarantine or isolation, upon exhausting sick leave.

The PFL and disability benefits may be payable concurrently to eligible employees on the first full day of the unpaid part of the quarantine or isolation period. This extends up to a maximum of $840.70 in PFL and $2,043.92 in disability benefits weekly, with a cumulative $2,884.62 weekly cap.

Unemployment Insurance
The Emergency NY Act also waives the normal seven-day waiting period for a claim for unemployment benefits if the employee is unable to work due to a closure of an employer for reasons relating to COVID-19, or due to a mandatory order imposed on the employer to shut down work.

Meaning of New York’s “Precautionary or Mandatory Order of Quarantine or Isolation”

“Mandatory or precautionary order of quarantine or isolation” is a central term in the Emergency NY Act because it is the single triggering cause for benefits under the Act. The term means “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.” New York lists examples of these orders viewable here, which include: (1) mandatory quarantines for people displaying COVID-19 symptoms who traveled to the CDC-flagged countries where COVID-19 is most prevalent; (2) mandatory isolation of people testing positive for COVID-19, even if asymptomatic; and (3) precautionary quarantine for people exposed to a person who tested positive for COVID-19, but who did not have direct contact with the infected person and are not displaying symptoms, among others.

The Interplay Between the Recently-Enacted Federal Families First Coronavirus Response Act and the Emergency NY Act

Although the Families First Coronavirus Response Act (“FFCRA”) and the Emergency NY Act were enacted into law on March 18, 2020, they go into effect at different times. They also are largely triggered by different qualifying needs. For a summary of the FFCRA, please see EP’s March 18, 2020 client alert, which can be found here.

How Are the FFCRA and Emergency NY Act Different?

The FFCRA and Emergency NY Act Become Effective at Different Times

As an initial matter, the Emergency NY Act immediately took effect on March 18, 2020. The FFCRA, however, does not become effective until April 1, 2020, according to guidance recently issued by the U.S. Department of Labor. And the FFCRA does not apply retroactively.

The FFCRA and Emergency NY Act Apply to Employers of Different Sizes

The FFCRA only offers protections to employees of employers with fewer than 500 employees. The Emergency NY Act, however, applies to employers of all sizes; although, more generous protections are afforded to employees as the size of the employer increases (as set forth above).

The FFCRA and Emergency NY Act Are Triggered by Different Qualifying Needs

Under the FFCRA, there are six qualifying needs that would trigger sick leave protection of up to 80 hours (or 10 workdays) for full-time employees and proration of that maximum for part-time employees according to average hours. Qualifying reasons include the need to take leave because the employee is:

  1. subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. experiencing COVID-19 symptoms and is seeking medical diagnosis;
  4. caring for “an individual” who is subject to a federal, state, or local quarantine or isolation order, or was advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. caring for the employee’s child if the child’s school or place of care is closed, or if the child’s care provider is unavailable due to a public health emergency; or
  6. 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.

But, sick leave of up to 14 workdays under the Emergency NY Act only is triggered if the employee seeking to take leave is “subject to a mandatory or precautionary order of quarantine or isolation” due to COVID-19.

Similarly, under the FFCRA, there is only one qualifying need that would trigger paid family and medical leave of up to 12 weeks (the first ten days of which are unpaid). It is to care for the employee’s son or daughter who is under 18 years old, if schools close or childcare providers are unavailable due to a public health emergency. But under the Emergency NY Act, an employee is entitled to PFL for one of two reasons—either the employee “(a) … is subject to a mandatory or precautionary order of quarantine or isolation issued by [the government] due to COVID-19; or (b) [must] provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by [the government] due to COVID-19.”

The FFCRA and Emergency NY Act Impose Different Limits on Benefit Amounts

Under the FFCRA, paid sick leave is capped at $511 per day, up to an aggregate of $5,110 for leave related to caring for oneself, and it is capped at $200 per day, up to an aggregate of $2,000 for leave related to caring for another. Under the Emergency NY Act, there does not appear to be a cap in the amount of paid sick leave.

Similarly, under the FFCRA, paid family leave is capped at $200 per day, up to an aggregate of $10,000. But paid family leave under the Emergency NY Act is capped at $840.70 weekly.

Please note that while the discussion above outlines main differences between the two statutory schemes, it is not intended to be an exhaustive summary of the ways in which the FFCRA and Emergency NY Act differ.

What If An Employee Has A Qualifying Need That Falls Under Both the FFCRA and the Emergency NY Act?

It is possible that an employee may qualify for leave under both the FFCRA and Emergency NY Act. Assuming, for example, that a full-time employee of an employer with fewer than 500 employees in New York is subject to a mandatory or precautionary order of quarantine or isolation, then the employee may qualify for paid sick leave under the FFCRA and paid sick leave and other benefits under the NY Emergency Act. In that event, the Emergency NY Act limits New York benefits to those amounts that exceed the FFCRA. For example, a 40-hour/five-day per week full-time employee of an employer with 100-plus (but fewer than 500) employees who is paid 80 hours (10 days) of FFCRA sick leave would only receive an additional four (4) days (32 hours) of paid sick leave under the Emergency NY Act—not 14 more days.

 

For any questions about this alert, you may contact:

Pantea Lili Ahmadi, Senior Corporate & Employment Counsel
pahmadi@ep.com

Scott Bishop, Vice-President, Employment Law
sbishop@ep.com

Joseph Scudiero, Senior Vice-President & Chief Labor Counsel
jscudiero@ep.com