Many businesses have questions concerning their obligations relating to COVID-19 pay to employees in New York. This Legal Alert addresses the complex interaction among multiple New York State laws to help employers navigate the Omicron surge, which continues to impact businesses throughout the State.
The COVID-19 related statutes provide both job protection and compensation to employees in different scenarios. The job protection applies more broadly to instances in which an employee or the employee’s minor dependent is subject to a mandatory or precautionary order of quarantine or isolation. The more complex consideration is determining how much potential pay an employee is eligible to receive and who is responsible for paying the employee (i.e., the employer or other state provided insurance benefits).
New York State law provides three key forms of compensated leave for employees who are unable to work (including remotely) for reasons related to COVID-19: (1) New York Quarantine Law pay (“COVID-19 Pay”); (2) New York Paid Family Leave (“PFL”); and (3) New York State/City Sick Leave (“Sick Leave”). These different forms of pay apply under different COVID-19 circumstances, as described below.
1. COVID-19 Pay
The New York COVID-19 Quarantine Law (“NY COVID-19 Law”) provides paid leave to certain employees who are unable to work because they are 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 authorized to issue such order.
Through the NY COVID-19 Pay Law, the State has established three thresholds based on the number of employees and the annual revenue of business to determine the number of NY COVID-19 Pay days an employee may receive:
- Employers with up to 10 employees and less than $1 million in annual net income shall provide employees with unpaid sick leave until the termination of any mandatory or precautionary order of quarantine. However, such an employee may be eligible for Paid Family Leave benefits or short-term disability (as described below).
- Employers with up to 10 employees and $1 million or more in annual net income, as well as those with 11-99 employees regardless of net income, must provide employees with at least 5 days of NY COVID-19 Pay followed by either unpaid job protection or the use of other sick leave, Paid Family Leave or short-term disability until the termination of any mandatory or precautionary order of quarantine or isolation.
- Employers with at least 100 employees must provide at least 14 days of NY COVID-19 Pay for each employee who is subject to a mandatory or precautionary order of quarantine or isolation and cannot work remotely.
Employers may request that employees provide proof of the Order of Quarantine or Isolation. Further information regarding the required documentation may be found at :obtain-order-of-quarantine.pdf. NY COVID-19 Pay may only be taken for COVID-19-related quarantine and isolation, and may be taken on up to three occasions.
Furthermore, in light of the Omicron surge and in conjunction with recommendations with the CDC, New York has issued industry specific guidance to address instances in which employees may be eligible to return to work prior to the termination of their order of mandatory or precautionary quarantine. These circumstances are case specific and should be addressed by assessing the totality of the circumstances. Guidance may be found at: update-interim-guidance-for-community-exposure.pdf.
2. New York Paid Family Leave (“PFL”)
In the event that an employee’s minor dependent is subject to an order of mandatory or precautionary quarantine and the employee is unable to work remotely, such an employee may qualify for job protected leave based on the employer thresholds described in section 1 above. In addition to job protection, such an employee may be eligible to receive compensation from the employer’s PFL insurance provider.
Additionally, employees who exhaust their NY COVID-19 Pay or other sick leave may be eligible to receive additional benefits pursuant to the benefits provided under PFL. Critically, these benefits are not paid by the employer but rather through insurance funded by payroll deductions.
3. New York State/City Sick Leave
In the event than an employee does not qualify for NY COVID-19 Pay, PFL or has otherwise exhausted such leave, the employee may be eligible to utilize employer-provided sick leave. New York State as well as New York City require employers to provide certain amounts of paid sick time, depending on the number of people they employ in the State/City. Businesses with 4 or fewer employees, whose net income is under $1 million annually must provide up to 40 hours per year of unpaid sick leave. Employers with 5-99 employees, or employers with 4 or fewer employees but with annual revenue of $1 million or higher, must provide up to 40 hours per year of paid sick leave. Those with at least 100 employees must provide up to 56 hours of paid sick leave. Employers may choose to “front load” all hours of the sick time on a certain date, such as the first of the year, or provide it on an accrual basis of 1 hour of sick leave earned for every 30 hours worked. Employers are required to have written policies describing when employees are eligible to use such leave.
Navigating the multiple layers of law, staying apprised of the shifting health guidance and addressing each case poses significant challenges for employers. The attorneys in Kane Kessler’s Labor & Employment Practice Group are available to help clients determine which leave applies to a particular situation. If you have any questions, please contact the Co-Chairs of Kane Kessler’s Labor & Employment Practice Group, Valerie K. Ferrier at 212-519-5107, vferrier@kanekessler.com, or Jeffrey G. Douglas at 212-519-5183, jdouglas@kanekessler.com
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.