Guidance issued by New York state on April 8 clarifies that the state COVID-19 law did not create any new entitlement for employees of large employers to use Paid Family Leave during coronavirus (COVID-19) quarantines.
New York state has released new guidance on its recently enacted emergency law providing paid sick leave benefits to certain employees subject to a coronavirus (COVID-19) quarantine and those taking care of a dependent minor subject to a COVID-19 quarantine (the State Law). Additional information about the State Law is available in the LawFlash Morgan Lewis published last week. The new guidance clarifies a number of questions raised by employers since the implementation of the State Law.
As a threshold matter, employees are only eligible for leave pursuant to the State Law in limited instances. Namely, employees must (i) be subject to a mandatory or precautionary order of quarantine or isolation for COVID-19, issued by the state of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order (a Quarantine Order); (ii) not be asymptomatic; and (iii) not be physically able to work through remote access or similar means. Importantly, Governor Andrew Cuomo’s “New York State on PAUSE” Executive Order closing nonessential business locations and restricting permitted workers at essential workplace locations is not a qualifying Quarantine Order. In fact, Governor Cuomo has made it clear in multiple public statements that he does not intend to issue a generally applicable Quarantine Order.
Rather, employees will only be subject to a Quarantine Order on an individual or specifically limited basis. New York State Department of Health guidance suggests that employees may be subject to a Quarantine Order if they have: (a) been in close contact (defined as six feet or less) with someone who has tested positive for COVID-19; (b) traveled to China, Iran, Japan, South Korea, or Italy and are displaying symptoms of COVID-19; or (c) tested positive for COVID-19 themselves, whether or not displaying symptoms for COVID-19. For any such employee, local health authorities will potentially issue a Quarantine Order once notified, and then serve the Quarantine Order on the employee. An employee would only potentially be able to use leave pursuant to the State Law after being served with a Quarantine Order, and even then would have to meet the other prerequisites. A Quarantine Order may also be issued to cover a certain building complex or nursing home, but the law is clear that a private physician ordering an individual to self-quarantine or self-isolate is not a qualifying Quarantine Order that entitles the employee to paid sick leave under the State Law.
In addition, the guidance confirms that an employee is not eligible for leave if they independently decide to quarantine (without a Quarantine Order issued by a public official). Also, the guidance notes that leave is not available if an employer temporarily closes or goes out of business because of COVID-19.
Importantly, the guidance clears up an ambiguity with respect to the amount of paid time offered pursuant to the State Law. While the State Law requires certain employers to provide paid sick leave, the guidance provides that the required leave amounts represent calendar days, not days worked. In other words, if an employee is eligible for 14 days of paid sick leave under the State Law, the employer is required to pay the employee amount of money that the employee would have otherwise received in the 14-calendar-day period (as opposed to 14 business days paid at the employee’s regular rate). Thus, if the employee would have otherwise worked 10 days during that period, then the employee is eligible for 10 days of leave. But, if the employee worked on a part-time basis, and only would have worked on six days during the 14-day period, they would only be entitled to six days of paid leave under the State Law.
Additionally, the guidance clarifies how an employer should calculate an employee’s regular rate of pay. The guidance instructs employers to pay the employee what they would have received had they worked for the relevant period based upon the employee’s schedule or the normal operations of the employer. For employees not paid a fixed or hourly wage, the guidance provides that “employers should determine the employee’s pay by looking at a representative period of time to set the employee’s average daily pay rate.” The guidance does not specify what a representative period of time is, but other New York leave laws, including the paid family leave law, specify that the appropriate look back period is eight weeks, which may provide a reasonable guide for employers to use in this situation as well.
The guidance also clarifies a number of points with respect to the use of leave. First, the guidance reiterates that employers must provide paid sick leave under the State Law in addition to and separate from any other paid time off accrued by the employee – whether it be pursuant to the New York City Earned Sick and Safe Time Act or to any employer sick pay, vacation pay, or other policy. For example, if an employer already provided employees with 20 combined days of Paid Time Off (combining sick, vacation, and personal days into a single “PTO” bucket), the employer would need to provide the 14 calendar days of paid sick leave mandated under the State Law separate from those 20 PTO days. Thus, if an employee receives a qualifying Quarantine Order, the employee could take 14 calendar days of pay under the State Law without reducing their currently accrued PTO.
While the State Law as written allows for benefits to run concurrently with federal COVID-19 leave benefits (including those provided in the federal Families First Coronavirus Response Act (FFCRA)), these benefits can only run concurrently where the FFCRA benefits are provided separately and on top of any paid sick time or paid time off accruals already provided by the employer. Therefore, if an employer runs FFCRA benefits concurrently with other PTO or currently existing paid sick time, the State Law sick leave benefits cannot run concurrently with these other benefit entitlements. Continuing the prior example, if an employer already provided 20 days of PTO and chooses to provide FFCRA leave on top of and separate from those 20 days, then the 10 business days of FFCRA leave and 14 calendar days of New York State Law paid sick leave could run concurrently.
Second, the guidance confirms that employees of employers with 100 or more employees (“large employers”) cannot use New York Paid Family Leave (NYPFL) or Short-Term Disability (STD) wage replacement benefits if they are subject to a Quarantine Order lasting more than 14 calendar days. Instead, if an employee of a large employer exhausts their 14 calendar days of paid leave, the employee is only entitled to job protection. Such an employee may use other accrued paid time off offered by the employer in such circumstances. As a reminder, employees of employers with 99 or fewer employees may be eligible for paid sick leave of up to five days of paid sick leave, followed by NYPFL and STD wage replacement benefits for the duration of a Quarantine Order not covered by paid time off (to the extent paid time off is required).
In addition, the guidance addresses the State Law’s expansion of the NYPFL to cover employees caring for a minor-dependent who is either (a) subject to a Quarantine Order, or (b) whose school or child care provider is closed because of a Quarantine Order. Such employees are eligible for NYPFL benefits, but not the other benefits under the State Law – including, specifically, the paid sick leave benefits provided under the law. The guidance originally provided that employees of employers were eligible for NYPFL benefits for the purpose of caring for an eligible minor-dependent; however, on April 8, 2020, the guidance was revised to clarify that employees of large employers are not eligible for NYPFL benefits pursuant to the state law. The guidance also confirms that a school closure for “social distancing” would not provide an employee with eligibility. Instead, a school closure must be due to a Quarantine Order.
The guidance confirms that there is no private action available for violations of the State Law. Instead, complainants are directed to contact the New York State Department of Labor.
The guidance also states that paid leave pursuant to the State Law should be paid through the regular pay method for the applicable pay period during which the leave was taken.
Finally, the guidance and State Law do not provide clarity on how to calculate the number of employees to determine the particular requirements applicable to an employer. While the State Law delineates employer requirements based upon total number of employees as of January 1, 2020, both the guidance and State Law are silent as to whether the employee headcount is limited to New York employees.
In addition to the new guidance on the State Law, the New York City Department of Consumer Affairs (the DCA, which is the agency that enforces and regulates the New York City Earned Sick and Safe Time Act) issued updated guidance this week on use of sick leave under New York City law. The DCA specifically stated that employees can use New York City Paid Sick Leave for any of the following COVID-19-related purposes:
Unlike the State Law, the New York City law does not require a Quarantine Order. For example, a physician-ordered quarantine would entitle an employee to paid sick leave under the New York City law. As noted above, if an employee is eligible to use both New York City and New York state paid sick leave, these two leave entitlements cannot run concurrently.
Additionally, with respect to enforcement of applicable law, the updated guidance states that the Department of Consumer and Worker Protection will
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