In March 2020, Congress signed into the law the Families First Coronavirus Response Act which had provided paid sick leave under the Emergency Family and Medical Leave Expansion Act as well as the Emergency Paid Sick Leave Act. In exchange for having to provide the paid sick leave, employers were eligible for a payroll tax credit.
However, Congress did not renew or extend the paid leave laws and they expired as of December 31, 2020. Employers are still eligible for the payroll tax credit through March 31, 2021.
Employees must therefore rely upon state law. Below is a brief summary of the New York State COVID-19 Paid Sick Leave law as well as updated guidance issued by the Department of Labor.
*Please note, this summary relates to paid sick leave for illness relating to COVID-19.
Updated Guidance from NYS Department of Labor:
Under the new guidance, an employee does not need to be tested before returning to work if they followed the mandatory period of quarantine.
But, if that employee subsequently tests positive for COVID-19, they must not report to work and shall be deemed to be subject to a mandatory order of quarantine and are therefore entitled to sick leave as required by NY’s COVID-19 Sick Leave Law (see summary below). This is true regardless of whether the employee has already received sick leave for the first period of quarantine. However, the employee must submit documentation from a licensed medical provider or testing facility attesting that the employee has tested positive.
An employee who is subject to an order of quarantine or isolation but continues to test positive for COVID-19 after the end of such quarantine or isolation period must not report to work. This employee is deemed to be subject to a second mandatory quarantine order and is therefore entitled to sick leave pursuant to NY’s COVID-19 Sick Leave Law (see summary below). As above, the employee must submit documentation of the positive COVID-19 test.
If an employer determines that an employee should stay out of work, but that employee is not subject to a mandatory order of quarantine, due to exposure or potential exposure, regardless of whether the exposure was in the workplace, the employer must continue to pay that employee at the employee’s regular rate of pay until the employer allows the person to return to work, or the employee becomes subject to a mandatory order of quarantine. In which case, the employee is entitled to paid sick leave under the NY Covid-19 Sick Leave Law.
An employee is not qualified for sick leave for more than three orders of quarantine. The second and third orders must be based upon a positive COVID-19 test.
COVID-19 Paid Sick Leave Law:
Employers with 10 or fewer employees and a net income less than $1 million in the previous tax year:
- Required to provide unpaid, job-protected sick leave to each employee subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the Department of Health, a local board of health, or any governmental entity duly authorized to issue such order due to COVID-19.
- Furthermore, these employees shall also be eligible for paid family leave benefits and disability benefits pursuant to this act (as are described and summarized below).
Employers with 10 or fewer employees and a net income of more than $1 million in the previous tax year, and employers with 11-99 employees:
- Required to provide at least 5 days of job-protected sick leave for each employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the Department of Health, a local board of health or any governmental entity duly authorized to issue such order due to COVID-19.
- After the five days have been used, an employee subject to a mandatory or precautionary order of quarantine or isolation may be eligible for a combination of Paid Family Leave and disability benefits pursuant to this act (as are described and summarized below).
Employers employee more than 100 employees:
- Required to provide at least 14 days of job-protected paid sick leave for each employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the Department of Health, a local board of health or any governmental entity duly authorized to issue such order due to COVID-19.
- After such the fourteen days of paid sick leave, an employee may be eligible for Paid Family Leave benefits and disability benefits due pursuant to this act (as are described and summarized below).
Exception to the above job-protected sick leave and benefits:
The provisions of the act signed by Governor Cuomo shall not apply in if the employee is not symptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory or precautionary order of quarantine or isolation whether it be through remote access or other similar means.
An employee shall also not be eligible for paid sick leave or any other benefits provided pursuant to this Act if the employee is subject to mandatory or precautionary order of quarantine because the employee has returned to the U.S. after traveling to a country for which the CDC has a level two or three travel health notice and the travel to that country was not taken as part of the employee’s employment or at the direction of the employer. Such employee shall be entitled to use any accrued benefits provided by the employer. If the employee has none, the employer shall provide unpaid sick leave for the duration of the mandatory or precautionary quarantine or isolation order.
Expansion of Benefits under Article 9 of the Workers’ Compensation Law:
This legislation expanded definitions of “disability” and “family leave” under Article 9 of the Workers’ Compensation Law as follows:
“Disability” shall mean:
- Any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation issued by the State, the Department of Health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19 and when the employee has exhausted all paid sick leave provided by the employee’s employer under this act.
“Family leave” shall mean:
- Any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation issued by the State, the Department of Health, a local board of health or any government entity duly authorized to issue such order due to COVID-19; or
- To 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 State, the Department of Health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19.
**Significantly, the Act provides that the issuance of a mandatory or precautionary order of quarantine or isolation by the State, the Department of Health or any government entity duly authorized to issue such order due to COVID-19 shall be sufficient proof of disability or need for family leave taken pursuant to this act.
The full text of the legislation can be found by clicking here: https://legislation.nysenate.gov/pdf/bills/2019/S8090
For more information on applying for Paid Family Leave and Disability Benefits, click here: https://paidfamilyleave.ny.gov/COVID19
Authored by: Erin M. Tyreman, Esq.
For more information contact Attorney Erin M. Tyreman
