DATE: March 20, 2020
TO: Kane Kessler, P.C. Clients
FROM: Kane Kessler, P.C.
Labor and Employment Law Department
RE: Federal and New York State COVID-19 Relief Legislation
On March 18, 2020 both the federal and New York State governments enacted significant pieces of legislation that aim to provide emergency relief and support in light of the ongoing COVID-19 pandemic.
The federal Family First Coronavirus Response Act (“Family First Act”) provides the Emergency Family and Medical Leave Expansion Act which amends the federal Family and Medical Leave Act (“FMLA”) and the Emergency Paid Sick Leave Act that entitles certain employees to paid sick leave. Both provisions will take effect no later than April 2, 2020 and expire on December 31, 2020.
The New York State COVID-19 response legislation provides quarantine-related sick leave to certain employees as well as expansion of New York Paid Family leave benefits and New York State disability benefits. These New York State provisions are effective immediately.
Federal Family First Coronavirus Response Act
A Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act amends the FMLA to provide eligible employees of all employers with fewer than 500 employees with 12 weeks of job protected public health emergency leave. Starting April 2, 2020 eligible employees will be able to take up to 12 weeks of FMLA leave if the employee is unable to work or remotely work because the employee needs to care for their son or daughter under 18 years old if the child’s school or place of care has been closed or a child care provider is unavailable due to a public health emergency related to COVID-19. Any full-time or part-time employee who has been employed by a covered employer for at least 30 calendar days would be eligible for this leave.
- The first 10 days (two weeks) of public health emergency leave are unpaid, but an employee may substitute accrued paid leave, including the federal emergency paid sick leave, which is discussed below.
- For the remaining 10 weeks, employers will be required to provide paid leave in the amount of no less than 2/3 of an employee’s regular rate of pay, for the number of hours the employee would otherwise be scheduled to work.
- Paid leave will be capped at $200 per day and $10,000 total during the duration of the leave.
- Employees seeking to use such leave must provide their employers with notice as soon as is practicable.
Employees taking public health emergency FMLA leave must be restored to their same or an equivalent position upon their return to work. However, employers with fewer than 25 employees may be excluded from this job restoration requirement if the employee’s position ceases to exist due to economic conditions or other operational changes caused by a public health emergency during the leave period. If eligible employers do not restore the employee due to operational changes the employer must make reasonable efforts to restore the employee to an equivalent position for up to one year following the employee’s leave.
The Secretary of Labor will have the authority to issue regulations exempting employers with fewer than 50 employees from the FMLA public emergency requirements if the imposition of such requirements would jeopardize the viability of the employers’ businesses.
B Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act will require all employers with fewer than 500 employees to provide all full-time and part-time employees, regardless of the length of their employment, with paid sick leave for certain reasons related to the COVID-19 pandemic. Covered employers must provide:
- full-time employees with up to 80 hours (two weeks) of paid sick leave and,
- part-time employees with sick leave in an amount equivalent to the number of hours they would normally be scheduled to work, on average, over a two-week period.
Employees may use this paid sick leave if they are unable to work or remotely work because of the following reasons:
- They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- They have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- They are experiencing symptoms of COVID-19 and are seeking a medical diagnosis;
- They are caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- They are caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions;
- They are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
The amount of pay employees are entitled to receive during a covered sick leave is dependent upon the reasons for such leave.
- If employees take leave for reasons (1), (2), or (3) above, the paid sick leave pay must be no less than their regular rate of pay, with a cap of $511 per day and $5,110 in total leave pay,
- If employees take leave for reasons (4), (5), or (6) above, the paid sick leave pay must be no less than 2/3 of their regular rate of pay, with a cap of $200 per day and $2,000 in total.
Employers may require, after the first workday an employee receives paid sick time, that employees following reasonable notice procedures in order to continue to receive such paid sick time. Covered employers cannot require employees to use other forms of paid leave provided to them before using this paid leave or require them to search for or find a replacement employee to cover the hours the employee is using paid leave. An employee’s right to take additional paid sick leave will end on the employee’s next scheduled work shift immediately following their return from leave. Any hours remaining by December 31, 2020 cannot be carried over to the next year and employees’ rights to take such leave will expire.
Employers are also required to post in a conspicuous location in the workplace where notices to employees are customarily posted a notice informing employees of their leave rights. A model notice will be produced and distributed by the Secretary of Labor no later than 7 days from the date of enactment.
The Secretary of Labor will have the authority to issue regulations exempting employers with fewer than 50 employees from the emergency paid sick leave requirements if the imposition of such requirements would jeopardize the viability of the employers’ businesses.
C Tax Credits
Covered employers will be able to utilize payroll tax credits through 2020 to cover wages paid to employees who elect to take paid time off under the federal leave provisions above.
New York State COVID-19 Response
A Quarantine-Related Sick Leave
New York State’s COVID-19 response legislation requires New York employers to provide job-protected sick leave to their employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by New York State, the state or local department of health, or any governmental agency due to COVID-19. This leave must be provided in addition to any sick leave employees already accrued. The amount of leave and whether such leave must be paid is dependent upon how many employees an employer has and, in some circumstances, the employers’ net income. Leave must be provided in accordance with the following:
- Employers with 10 or fewer employees as of January 1, 2020 and a net income less than $1 million in the previous tax year: must provide unpaid, job protected sick leave to each employee who is subject to an order of quarantine or isolation through the termination of such order. Affected employees would be eligible for New York Paid Family Leave benefits and New York statutory disability benefits during the quarantine period.
- Employers with 10 or fewer employees as of January 1, 2020 and a net income greater than $1 million dollars in the previous tax year, as well as employers with 11 to 99 employees: must provide at least 5 days of job-protected paid sick leave, followed by unpaid leave to quarantined or isolated employees until the termination of the order. During the period of unpaid leave, the employees will be eligible for New York Paid Family Leave benefits and New York disability benefits for the remainder of the quarantine period.
- Employers with 100 or more employees as of January 1, 2020 as well as all public employers: required to provide at least 14 days of job-protected paid sick leave during the period of the order.
Employees who are asymptomatic or have not been diagnosed with any medical condition and are physically able to work, whether remotely or other means, while under mandatory or precautionary order of quarantine or isolation are not eligible for paid sick leave. Additionally, employees who are subject to a quarantine order due to their return to the United States after non-employment related travel to a country which the CDC designated as a level two or three travel advisory are ineligible for paid sick leave benefits if they were provided notice of the travel advisory and the limitations on the paid sick leave benefits prior to such travel. These employees would still be able to use any other accrued leave during their quarantine. To the extent that the employee does not have sufficient accrued leave, employers must provide unpaid sick leave for the duration of the employee’s quarantine.
Following an employee’s return from any sick leave they must be restored to the position they held prior to their leave with the same pay and other terms and conditions of employment. Employers are prohibited from discriminating or retaliating against any employee who takes such leave.
B Paid Family Leave Benefits
Employees who fall into groups 1 and 2 above are eligible to receive New York Paid Family Leave benefits during the unpaid period of leave due to an order of quarantine or isolation. Such benefits are also available to employees who must provide care for their minor dependent child who is subject to a mandatory or precautionary order of quarantine or isolation issued by New York State, the state or local department of health, or any governmental agency due to COVID-19. Paid Family Leave benefits would be paid in the amount presently provided in other circumstances – 60% of the employee’s average weekly wage, capped at $840.70 per week.
C New York State Disability Benefits
Employees who fall into groups 1 and 2 above are eligible to receive, concurrently with Paid Family Leave benefits, New York State disability benefits as of the first unpaid day of leave where employees are unable to perform the regular duties of their employment or the duties of any other employment offered by the employer as a result of a mandatory or precautionary order of quarantine or isolation issued by New York State, the state or local department of health, or any governmental agency due to COVID-19. Disability benefits would be paid an amount equivalent to the difference between the maximum weekly paid family leave benefit and the employee’s total average weekly wage, up to a maximum disability benefit of $2,043.92 per week.
If you have any questions, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Jennifer Schmalz, Robert L. Sacks, Jaclyn Ruocco, Joseph Tangredi, or Brian Polivy.
This memo is provided for informational purposes only. It is not intended as legal advice and readers should consult counsel to discuss how these matters relate to their individual circumstances