Locke Lord QuickStudy: New York Passes Law on Paid and Unpaid Sick Leave and Family and Disability Leave Due to COVID-19

New York Governor Cuomo signed Senate Bill 8091 (S. 8091) into law on March 18, 2020 to provide job protection and sick leave, family leave, and disability leave for employees who are subject to mandatory or precautionary orders of quarantine or isolation due to COVID-19. The new law defines mandatory or precautionary orders as those issued by the State, New York State Department of Health, local Board of Health, or authorized governmental entity duly authorized to issue such order due to COVID-19.

The provisions of this law do not apply to employees who are deemed asymptomatic or have not been yet been diagnosed with any medical condition and are physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or otherwise.  Further, the law seems to be focused on isolation and quarantine of individual workers; thus it is unclear if the March 20, 2020 executive order, which includes a directive that all non-essential businesses statewide close in-office personnel functions effective at 8 PM on March 22, is a mandatory or precautionary order “of quarantine or isolation.” Neither the Governor’s Office nor the Commissioner of Labor has issued guidance yet to clarify this uncertainty.

Sick Leave Benefits

The benefits available to employees under Senate Bill 8091 differ according to the number of employees employed by an employer:

• Employers with 10 or fewer employees and a net income less than $1 million must provide their workers with unpaid sick leave until the termination of any mandatory/precautionary order of quarantine/isolation and shall be eligible for paid family leave and disability benefits.
• Employers with 10 or fewer employees and a net income greater than $1 million must provide their workers with at least 5 days of paid sick leave, and unpaid leave until the termination of any mandatory/precautionary order of quarantine/isolation. After those 5 days of paid sick leave, an employee shall be eligible for paid family leave and disability benefits.
• Employers with 11-99 employees must provide their workers with at least 5 days of paid sick leave, and unpaid leave until the termination of any mandatory/precautionary order of quarantine/isolation. After those 5 days of paid sick leave, an employee shall be eligible for paid family leave and disability benefits.  
• Employers with 100 or more employees, as well as all public employers (regardless of number of employees), must  provide their workers with at least 14 days of paid sick leave during any mandatory/precautionary order of quarantine/isolation.

Disability and Family Leave Benefits

In addition to sick leave, the law expands the definition of “disability” under the New York Disability Benefits Law (DBL), which is part of the New York Workers’ Compensation Act.  It now includes the inability of an employee to perform his or her regular duties or any other duties assigned by the employer as a result of a mandatory or precautionary order of quarantine or isolation due to COVID-19 and the employee has exhausted all paid sick leave under the law.  The law provides for immediate payment of disability benefits to such person, eliminating the 7-day waiting period under the DBL.

The law also expands the definition of “family leave,” which is also part of the New York Workers’ Compensation Act.  It now includes “(a) any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation … due to COVID-19; or (b) to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation … due to COVID-19.”  

Benefits under the family and disability leave laws in New York may not exceed $840.70 per week in paid family leave and $2,043.92 in disability benefits per week (less any amounts received in wages from the employer).

Unemployment Benefits

The new law provides that a claim for unemployment benefits occasioned by the closure of an employer for a reason related to COVID-19 or a mandatory order by a government entity ordering closure of the employer shall not be subject to a waiting period.

Additional Observations

• Employers must provide job protection to each employee for the duration of the mandatory or precautionary order of quarantine or isolation and restore the employee to the position of employment held by the employee prior to the leave taken with the same pay and other terms and conditions of employment. The new law does not provide any guidance to employers when the employee’s prior position ‎no longer exists once the employee is able to return to work following quarantine or isolation.‎
• Employees are entitled to benefits provided under this new law that are in excess of those provided by any federal law or regulation, but not benefits that are duplicative of any federal sick leave and employee benefits.
• None of the paid benefits under this law are available to employees who are subject to a mandatory or precautionary order of quarantine where the employee has returned to the U.S. after traveling to a county that the CDC issued a level 2 or level 3 travel health notice for non-business related reasons; however, such an employee shall be entitled to the unpaid leave provisions of the law.
• The law does not indicate if the sick leave provisions run concurrently with paid sick leave ‎benefits under an employer’s sick leave policy. ‎
• The new law authorizes the Commissioner of Labor to issue regulations and guidance to effectuate the provisions of the new law ‎and clarify some of the uncertainties noted above.‎

Takeaways

New York employers should expect a torrent of benefit claims from employees under this new law. 

Companies operating in New York should be on the lookout for emergency regulations, guidance, and forms from the Commissioner of Labor.

NOTE: Because of the ever-changing COVID-19 legal environment, employers should consult with counsel for the latest ‎developments and updated guidance on these topics.‎

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.