COVID-19 New York State and Federal Labor and Employment Update

COVID-19 Update

Updated 3.19.2020: Following up on Tuesday’s alert below, as expected, Governor Cuomo has signed into law an emergency, immediately-effective sick leave and benefits bill in connection with the COVID-19 pandemic. The law is identical to the earlier iteration of the bill, except for the notable omission of the previously-included, non-pandemic-related New York sick leave law. Instead, this comprehensive sick leave legislation will be considered by the state legislature on or before the legislature’s April 1, 2020 budget deadline.

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This afternoon, Governor Cuomo announced an agreement with the New York state legislature to enact a comprehensive bill featuring, among other provisions, sweeping, immediately-effective sick leave, paid family leave, and disability entitlements in connection with the COVID-19 pandemic, as well as an entirely new New York State sick leave law unrelated to the pandemic. The bill is expected to be passed tomorrow.

New York COVID-19 Sick Leave

General Provisions

As noted, the bill’s pandemic-related provisions would become effective immediately upon the bill’s anticipated passage and would provide New York employees who have been quarantined as a result of the coronavirus with, among other protections, mandatory, job-protected paid or unpaid sick leave. Specifically, employers would be required to provide the following sick leave and benefits to each employee who is subject to a mandatory or precautionary order of quarantine or isolation:

  • Employers with 10 or fewer employees and a net income of less than $1 million must provide each employee with unpaid sick leave until the termination of the order. Each employee subject to such an order shall also be eligible for paid family leave and disability benefits until the termination of the order.
  • Employers with (i) 11 to 99 employees, or (ii) 10 or fewer employees and a net income greater than $1 million, must provide each employee with at least five days of paid sick leave, and if the above-noted order lasts longer than five days, unpaid sick leave for the remainder of the order’s pendency. Each employee subject to such an order shall also be eligible for paid family leave and disability benefits until the termination of the order.
  • Employers with 100 or more employees must provide each employee with at least 14 days of paid sick leave, and if the mandatory or precautionary quarantine order lasts longer than 14 days, unpaid sick leave for the remainder of the order.

Important and Newly-Expanded Definitions

In order to ensure the greatest measure of both job protection and compensation to employees during the pendency of the pandemic, the bill expands the scope of certain existing terms that appear in New York’s Disability Benefits Law. Specifically:

  • For purposes of this bill only, the term “disability”—as used in New York’s Disability Benefits Law—is defined as “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 Quarantine Order],” and when the employee has exhausted all paid sick leave provided by the employer pursuant to the bill.
  • The definition of the term “family leave”—relevant under New York’s Paid Family Leave Law—will provisionally be defined as including “any leave taken by an employee from work when an employee is subject to a [Mandatory or Precautionary Quarantine Order]” or “to provide care for a minor dependent child of the employee who is subject to a [Mandatory or Precautionary Quarantine Order].”

Notably, the bill broadly defines a “mandatory or precautionary order of quarantine or isolation” (a “Mandatory or Precautionary Quarantine Order”) as such an order that has been “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 due to COVID-19.”

Additional Details

The bill states that the foregoing sick leave requirements shall be provided “without loss of [an employee’s] accrued sick leave,” thus indicating that the COVID-19 sick leave entitlements will be on top of an employee’s accrued but unused sick leave. It also provides that, following the conclusion of an employee’s COVID-19-related sick leave, the employer must return the employee to the same job position that s/he had held prior to the leave, with the same pay and other terms and conditions of employment. The bill further clarifies that, in the event that the federal government enacts a law providing sick leave or other employment benefits that overlap with the leave and benefits provided by New York State’s anticipated bill, the employee shall only be entitled to the bill’s sick leave or benefits if, and to the extent that, the bill’s sick leave and benefits exceed those provided by the federal government.

Critically, the bill clarifies that its provisions do not apply in instances where an employee is “deemed asymptomatic or has not yet been diagnosed with any medical condition” and is physically able to work while under a Mandatory or Precautionary Quarantine Order, “whether through remote access or other similar means.”

New York State Sick Leave Reform

If passed, the bill will also create an entirely new, comprehensive New York state Sick Leave Law unrelated to the COVID-19 pandemic, which would become effective 180 days after the bill’s enactment. While we will, of course, examine this groundbreaking legislation in greater detail in the coming days—including its overlap with existing local sick leave laws, including New York City’s Earned Safe and Sick Time Act—seminal provisions of the bill include:

  • Employers with four or fewer employees and a net income less than $1 million will be required to provide their eligible employees with at least 40 hours of unpaid sick leave, annually.
  • Employers with (i) five to 99 employees, or (ii) employers with four or fewer employees and a net income greater than $1 million, must provide their employees with at least 40 hours of paid sick leave, annually.
  • Employers with 100 or more employees must provide their employees with at least 56 hours of paid sick leave, annually.

Update on Federal Paid Family Leave Law

As of this time, the U.S. House of Representatives bill that passed early on March 14, 2020, the Families First Coronavirus Response Act (H.R. 6201), has not been enacted. Last night, the House voted by unanimous consent to make technical corrections to the bill (see our original summary of H.R. 6201’s paid leave provisions here). H.R. 6201 and its technical amendment now await consideration in the Senate, which is expected to vote on the legislation as early as today, but could make changes that would necessitate another House vote. Manatt’s Employment and Labor team will provide an updated summary of the final bill upon enactment. Meanwhile, a third COVID-19 stimulus package is being discussed by lawmakers in both chambers.

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Given these substantial developments, employers must promptly modify their sick leave policies and procedures. In particular, employers should consider disseminating a communication and/or provisional new policy to their employees advising as to the soon-to-be-implemented COVID-19 sick leave measures and details regarding the way in which the company will be complying with them.

We will continue to provide updates and analysis regarding these rapidly emerging developments, and we invite you to reach out to a member of Manatt’s Employment and Labor team with any questions you may have.

For regular updates on the major challenges companies are facing, please visit our COVID-19 resources page and subscribe for timely updates in your inbox here.

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