Leave for Those Subject to an Order of Quarantine or Isolation
In response to the COVID-19 outbreak, Governor Cuomo signed into law a bill – effective immediately – that provides job-protected paid and unpaid sick leave to employees that are “subject to a mandatory or precautionary order of quarantine or isolation” due to COVID-19:
- Employers with 10 or fewer employees and a net income of less than $1 million must provide unpaid sick leave, as well as access to New York Paid Family Leave (PFL) or Short-Term Disability (STD) for the duration of any quarantine or isolation period.
- Employers with 11 to 99 employees or with 10 or fewer employees and a net income greater than $1 million must provide employees at least five days paid sick leave, and then unpaid sick leave, as well as access to PFL and STD for the duration of any quarantine or isolation period.
- Employers with 100 or more employees or public employers (regardless of the number of employees) must provide employees at least 14 days of paid sick leave for the duration of any quarantine or isolation period. Employees of employers with 100 or more employees (large employers) cannot use PFL or 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.
Under the New York State FAQs page, the term “days” has been clarified to mean calendar days – not work days.
Leave under this law must be provided to employees “without loss of accrued sick leave,” meaning that this leave is in addition to the leave provided by employers, inclusive of paid leave under the Families First Coronavirus Recovery Act (FFCRA). Moreover, employers are required to restore employees to the same, not an equivalent, position held prior to taking leave. Finally, the law also prohibits retaliation against an employee for taking such leave.
While expansive, the New York law carves out several exceptions. For instance, employees will not be eligible for leave under the law where employees have been quarantined as a result of non-business travel to a country identified as level 2 or 3 risk by the CDC; rather, they may use any accrued leave they have with the employer or, where an employee does not have any available leave, unpaid sick leave for the duration of the quarantine or isolation period. Employees are likewise not eligible to take sick leave under the new law if they are deemed asymptomatic or have not yet been diagnosed with a medical condition and are physically able to work remotely or through other means while under a mandatory quarantine or isolation.
Moreover, although not specified in the law, the New York State FAQs page clarifies that if a school is closed due to a mandatory or precautionary order of quarantine or isolation issued by the state, its department of health, local board of health or government entity, employees may be eligible to take paid family leave. Comparatively, if an employee is caring for a child whose school is closed for preventative social distancing, but not due to a quarantine order, then leave under the new law would not be available.
New York employers should also be aware of other additional restrictions and applications of local law, if any, including but not limited to the New York City Paid Safe and Sick Leave Law and the Westchester County Earned Sick leave Law.
Expansion of New York’s Paid Family Leave and Disability Benefits
In addition to the foregoing, the law expands the definitions of “family leave” under New York’s Paid Family Leave and Disability laws to include COVID-19-related uses for employers with fewer than 100 employees. Family leave now includes leave taken by an employee from work when subject to a quarantine or isolation order, or to provide care for a minor dependent child who is subject to a quarantine or isolation order. The definition of “disability” similarly includes an employee’s inability to perform the regular duties of their employment or duties offered by an employer as a result of a quarantine or isolation period, upon exhausting sick leave. The waiting period for disability benefits has also been waived.
Disability and Paid Family Leave benefits may be payable concurrently to eligible employees upon the first full day of the unpaid period of a quarantine or isolation order. Employees would be entitled to up to $840.70 per week in paid family leave and $2,043.92 per week in disability benefits (calculated by the difference between the maximum weekly family leave benefit and the employee’s total average weekly wage). Employees may be entitled to a combination of paid family leave and disability benefits of up to $2,884.62 per week.