Federal and New York State COVID-19 Sick Leave Laws Update
The U.S. Department of Labor (DOL) has issued a model notice and guidance for the recently enacted Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA). New York State has also issued guidance for its recently enacted COVID-19 sick leave law. This alert provides an overview of those laws and certain aspects of the respective guidance issued for them, including a chart that outlines leave requirements for each law. (Chart is included in the printer-friendly version of this Alert – link above title.)
Emergency Paid Sick Leave Act Overview
The EPSLA requires employers with fewer than 500 employees to provide all employees with the following sick leave:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay, where the employee is unable to work (or telework) because the employee is quarantined (pursuant to federal, state or local government order, or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is unable to work (or telework) because of a bona fide need to care for an individual subject to quarantine (pursuant to federal, state or local government order, or advice of a health care provider), or care for a child (under 18 years of age or who is 18 or older and incapable of self-care due to a physical or mental disability) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services.
Employers cannot require employees to use other paid leave time before using leave under the EPSLA.
Emergency Family Medical Leave Expansion Act Overview
The EFMLEA requires employers with fewer than 500 employees to provide those employed for at least 30 days with the following leave:
- Up to an additional 10 weeks of paid expanded family and medical leave, at two-thirds the employee’s regular rate of pay, where an employee is unable to work (or telework) due to a bona fide need for leave to care for a child (under 18 years of age or who is 18 or older and incapable of self-care due to a physical or mental disability) whose school or child care provider is closed or unavailable for reasons related to COVID-19.
The EPSLA and EFMLEA exempt health care providers and emergency responders from their coverage. Small businesses with fewer than 50 employees are also exempt from the EFMLEA and the EPSLA’s provision to provide leave to care for a child because of a school closure or the unavailability of a child care provider due to COVID-19 precautions, if granting leave would jeopardize the viability of the business.
The EPSLA and EFMLEA took effect on April 1, 2020. Covered employers must post the DOL-issued notice in the workplace. In the case of employees who are teleworking, the posting requirement can be satisfied by e-mailing or direct mailing the notice to employees, or posting the notice on an internal or external employee informational website. The DOL has issued additional guidance about complying with the laws’ notice requirements.
New York COVID-19 SICK Leave Law Overview
The New York COVID-19 Sick Leave Law entitles all employees to leave, paid or unpaid, depending on employer size, where an employee is subject to a mandatory or precautionary order of quarantine or isolation, as follows:
- Private employers with 10 or fewer employees and net income up to $1 million: unpaid leave until the end of the quarantine or isolation period, and immediate eligibility for Paid Family Leave and disability benefits.
- Private employers with 10 or fewer employees and net income greater than $1 million: five days of paid sick leave and, after the expiration of the five paid days, unpaid leave and eligibility for disability and Paid Family Leave through the termination of the quarantine or isolation order.
- Private employers with 11 to 99 employees: five days of paid sick leave and, after the expiration of the five paid days, unpaid leave and eligibility for disability and Paid Family Leave through the termination of the quarantine or isolation order.
- Private employers with 100 or more employees: 14 days of paid sick leave during the period of quarantine or isolation only.
- Public employers: 14 days of paid sick leave.
Employees are also entitled to Paid Family Leave to care for a minor dependent child who is subject to a quarantine or isolation order.
Paid sick leave under the law must be provided in addition to any paid sick leave otherwise provided by an employer. Where an employee is entitled to leave under the New York COVID-19 Sick Leave Law and any federal law, such as the EPSLA or EFMLEA, at the same time and for the same reason, the employee is entitled under the New York law only to those benefits in excess of those provided under the applicable federal law.
EPSLA and EFMLEA Guidance
Below is a summary of certain portions of the DOL’s EPSLA and EFMLEA guidance.
What documentation is required to take leave?
Employees must provide sufficient information to support a leave absence, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s), e.g., a copy of the quarantine or isolation order, or written documentation from a health care provider advising self-quarantine. For employees using leave to care for a child, examples of supporting documentation include a notice posted on a government, school or day care website, or published in a newspaper, or an e-mail from an employee or official of the school, place of care, or child care provider.
Employers should keep this documentation if they will seek tax credits for providing paid leave. The DOL guidance states that employers will have to consult Internal Revenue Service (IRS)-applicable forms, instructions and information for the process they will need to follow to claim this tax credit, including any necessary supporting documentation. An employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.
When is an employee “unable” to work or telework?
The DOL guidance explains that being “unable” to work or telework means that work is available, but the employee is unable to perform it because of one of the reasons specified by the EPSLA or EFMLEA. If an employee is able to work his or her normal number of hours per day but outside of the employee’s normally scheduled hours, the employee is considered able to work and leave is unnecessary, unless a qualifying reason under the applicable law prevents the employee from working the alternate schedule.
When can employees use intermittent and incremental leave?
The DOL guidance provides that in certain circumstances, an employer and employee may agree that emergency paid sick leave and emergency paid family and medical leave benefits will be taken on an intermittent and incremental basis. While an employee is teleworking, an employer and employee may agree that leave will be taken intermittently and in any increment. Likewise, if an employee is working at the employer’s worksite, the employer and employee may agree that paid sick leave under the EPSLA to care for a child, because the child’s school is closed or child care provider is unavailable, may be taken intermittently and in any agreed-upon increment. However, if the employee is working at the employer’s worksite, leave for any other reason covered by the EPSLA cannot be taken intermittently and must be taken in full-day increments. If an employee is working at the employer’s worksite, the employer and employee may also agree to intermittent leave under the EFMLEA to care for a child at home because school is closed or a child care provider is unavailable due to COVID-19 precautions.
Does a worksite closing or furlough eliminate leave availability?
The DOL guidance states that employees are ineligible to receive, or to continue to receive, leave under the EPSLA and EFMLEA if:
- The employee’s worksite closes before or after the laws take effect;
- An employee is on leave when closure occurs;
- An employer furloughs an employee; or
- The worksite temporarily closes, and the employer says it will reopen in the future.
The reason for a worksite closure does not change an employee’s ineligibility for leave. In such cases, an employee’s only recourse is to seek unemployment benefits.
Does health coverage continue during leave?
Health insurance coverage must be maintained during leave under both the EPSLA and EFMLEA on the same terms as if the employee continued to work.
Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempt from paid sick leave or expanded family and medical leave by their employer under the EPSLA and EFMLEA, a health care provider is anyone employed at any doctor’s office; hospital; health care center; clinic; post-secondary educational institution offering health care instruction; medical school; local health department or agency; nursing facility; retirement facility; nursing home; home health care provider; any facility that performs laboratory or medical testing; pharmacy; or any similar institution, employer or entity. This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities’ institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual who is the highest official of a state or territory, including the District of Columbia, who determines that a health care provider is necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
When does the small business exemption apply to exclude a small business from the provisions of the EPSLA and EFMLEA?
An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business), is exempt from providing (a) paid sick leave due to school or place of care closures, or child care provider unavailability for COVID-19-related reasons, and (b) expanded family and medical leave due to school or place of care closures, or child care provider unavailability for COVID-19-related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
New York COVID-19 Sick Law Guidance
Below are relevant sections of the New York State guidance (as edited for clarity).
At what rate of pay does leave need to be paid?
For the applicable paid leave period (5 or 14 days), employers must pay the amount that an employee would have otherwise received had the employee continued to work for that period, based upon the amount that the employee was scheduled or would have been scheduled, had the employer’s operations continued in its normal due course. Employees who work a fixed schedule or are paid a salary should simply continue to receive pay for the applicable period. For hourly, part-time, commissioned salespeople, and other employees who are not paid a fixed wage, employers should determine the employee’s pay by looking at a representative period of time to set the employee’s average daily pay rate.
For how many days of leave are part-time employees required to be paid?
Part-time employees should be paid for the number of days/amount of time during the 5- or 14-day period they are required to receive pay that they would have otherwise received had the employer’s operations continued in their normal due course.
Is the number of paid days based on work or calendar days?
The number of paid days is calendar days, and the pay required should represent the amount of money that the employee would have otherwise received for the 5- or 14-day period.
When is payment required to be made to employees eligible to receive paid sick leave?
The paid sick leave payments are subject to the frequency of pay requirements of Section 191 of the Labor Law, and leave payments should be made in the paycheck for the applicable pay period for the leave.
Is there a waiting period before receiving paid family leave, disability benefits or quarantine leave benefits?
No. There is no waiting period for benefits claimed as a result of a mandatory or precautionary quarantine or order of isolation.
Is quarantine leave retroactive?
Yes. Employees may take quarantine leave if they are currently under a mandatory or precautionary order of quarantine or isolation issued by the State, Department of Health, local board of health, or government entity even if that order was issued prior to the enactment of the COVID-19 quarantine leave.
Can an employer require an employee to use existing sick leave accruals or other accruals (paid time off) for a COVID-19 quarantine order?
No. Employers required to provide COVID-19 paid sick leave must provide that leave separate from any accruals.
Is an employee’s job protected during COVID-19 quarantine leave?
Yes. An employee cannot be fired for taking leave. An employer cannot fire or take action against an employee for taking leave, and employees are entitled to be restored to the position they held prior to taking leave. Any COVID-19 quarantine leave should not be counted as an absence that may lead to, or result in, discipline, discharge, demotion, suspension or any other adverse action.