COVID-RELATED EMPLOYMENT LAW UPDATESCOVID-RELATED EMPLOYMENT LAW UPDATES

Q. As a New York State employer, what paid sick leave or family leave laws are currently applicable to my business?
A. New York State employers are currently/will shortly be subject to:
• The Families First Coronavirus Response Act (federal law passed in response to COVID-19 crisis)
• New York State Paid Family Leave law (passed in response to COVID-19 crisis);
• Additionally, if you are a New York City employer, the NYC Earned Sick Time Act remains in effect;
• Other federal/state family leave laws may remain in effect.

Q. When do these laws go into effect?
A. The federal Families First Coronavirus Response Act (“FFCRA”) is effective on April 1, 2020. The NYS Paid Family Leave law is already in effect.

Q. What circumstances do these laws look to address/what leave is covered?
A. The federal FFCRA mandates a broad range of COVID-19-related employee leave, including (a) due to a quarantine (ordered by federal, state or local government or on advice of a health care provider), (b) for the purpose of receiving a medical diagnosis (if exhibiting COVID-19 symptoms), or (c) caring for a quarantined individual, or for a child who is home due to school closure/unavailable child care provider.The New York State Paid Family Leave law applies only to (COVID-19-related) employee leave due to a formal government-ordered quarantine. However, a quarantine ordered by a health care provider while an employee applies and is waiting for a government-ordered quarantine would be covered by NYS paid sick leave, as would precautionary quarantine ordered by the employer.

Q. Which employers do the laws apply to?
A. The federal FFCRA applies to employers with less than 500 employees, although exceptions may be apply for employers with less than 50 employees. The NYS Paid Family Leave law applies to almost all employers, although the extent of the obligations vary based on the employer’s size and/or profitability.

Q. What are the main provisions of each law?
A. The federal FFCRA mandates that covered employers provide employees with:
• Up to 80 hours of paid sick leave at the employee’s regular rate of pay for (a) employees in quarantine as per government order/advice of a health care provider, (b) employees with COVID-19 symptoms who are absent for the purpose of seeking a medical diagnosis; or
• Up to 80 hours of paid sick leave at two-thirds the employee’s regular rate of pay for an employee absent due to caring for (a) a quarantined individual, or (b) a child whose school or child care provider is closed or unavailable for COVID-19-related reasons;
• Up to an additional 10 weeks of employer-paid expanded family and medical leave at two-thirds the employee’s regular rate of pay for employees who are unable to work due to caring for a child whose school or child care provider is closed/unavailable for COVID-19- related reasons.
The NYS Paid Family Leave law mandates that:
• Employers with fewer than 10 employees (as of January 1, 2020) and made less than $1 million in 2019 must provide unpaid sick leave to (formally) quarantined employees;
• Employers with either (a) between 11 and 99 employees, or (b) fewer than 10 employees, but made more than $1 million in 2019, must provide five days of paid sick leave to quarantined employees;
• Employers with 100 or more employees must provide 14 days of paid sick leave to quarantined employees.

Q. What qualifies as “quarantine” or “isolated” for the purpose of being eligible for sick/family leave?
A. Under the FFCRA, any order from a government official or health care provider qualifies the employee for sick leave. Under the NYS Paid Family Leave law, the employee must apply for an order of quarantine from a local health department. However, while the employee waits for such order, he/she can collect paid sick leave if obtaining certification from a physician that quarantine/isolation are necessary. Additionally, under the state law, a precautionary order of quarantine imposed by the employer qualifies employees for paid sick leave.

Q. Are these laws retroactive?
A. No. The laws only cover the period starting from their respective effective dates (see above). However, employees already on leave due to a qualifying condition (i.e. an order of quarantine or caring for a child home for school) when the laws became effective would seemingly be covered, but only going forward, so employers don’t need to pay for the leave that was taken prior the laws’ effective date(s).

Q. What about leave provided to employees for COVID-19 prior to the effective date of the laws? Does it count towards fulfilling the employer’s obligation?
A. No. Leave granted prior to the effective date is not subtracted from the mandated leave (ex: employees provided with paid sick leave prior to April 1st would still be entitled to 80 hours after April 1, under the federal law).

Q. What employees are eligible for this leave?
A. Under both laws, nearly all full or part-time employers are eligible no matter how much time they have spent with their employers. However, the portions of the FFCRA that provide 10 weeks of paid family leave only apply to employees who have been with their employers for at least 30 days.

Q. How is paid sick leave/paid family leave calculated under these laws?
A. Leave is calculated as follows:Under the federal FFRCA:
• employees in quarantine as per government order/advice of a health care provider, or employees seeking a diagnosis are entitled to pay at their regular rate or applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period);
• employees taking leave to take care of an individual in quarantine are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period);
• employees taking leave to take care of a child (if their school/care provider is closed/unavailable because of COVID-19-related reasons) are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).Under the NYS Paid Family Leave law, all paid sick leave must be at regular rate of pay.

Q. What about part-time vs. full-time?
A. The general rule is that employees must be paid what they would have otherwise made. Non-fixed salaried employees are entitled to be paid for their projected work schedule. Commissioned salespeople or other non-fixed compensation employees should be paid based on a representative period of time.

Q. Can I force employees to use other paid sick leave before using FFRCA/state law paid sick leave?
A. It appears that under both laws, employers cannot require use of other accrued paid sick leave before using FFRCA/state law paid sick leave.

Q. How do these various laws interact with each other – for example, does paid leave granted under one law offset or cancel paid leave granted under another law?
A. The New York State law provides that to the extent that the federal law is equal or more generous than the state law, the state law does not apply. However, if state law is more generous, the employee may be entitled to such excess sick pay.

Q. How do business closures, terminations, furloughs etc. factor in to paid leave?
A. The general rule is that any interruption to employment (business closure, termination or furlough of employees) freezes the employer’s paid leave obligation at that point. So if the business closes or an employee is fired before the employee qualifies for sick leave, there is no obligation to pay sick leave. If the business closes while the employee is on leave, only leave already taken by the employee must be paid.

Q. Are there any exceptions or exemptions to these laws?
A. Under the federal FFRCA, employees of health care businesses may be exempt. This would include 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 also 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. However, it is possible that later guidance could limit this to clinical employees. It should also be noted that state law still covers these employees. Additionally, under the FFRCA, small business (under 50 employees) may elect to be exempt from paying leave for an employee caring for a child (i.e. due to school closures) if able to demonstrate that the leave requirements would jeopardize the viability of the business as a going concern.Additionally, under both laws, healthy (or asymptomatic) employees who can work from home (i.e. remotely) do not qualify for paid sick leave or other benefits.

Q. How do I apply for these exemptions?
A. The US Department of Labor, with respect to the small business exception, has instructed employers to simply maintain documentation that “the leave requirements would jeopardize the viability of the business as a going concern” and not to submit any documentation to the DOL yet. More guidance is expected here. At minimum, employers may be required to demonstrate at least one of the following circumstances exist:
• that the paid leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause it to cease operating at a minimal capacity;
• That the absence of the employee 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 available, 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. It should be noted that it appears this exception would only apply to employees requesting leave to care for a child due to school closures/unavailability of child care provider.

Q. What other obligations/restrictions do these laws impose on employers?
A. The laws also provide a guarantee of job protection when ready to return to work, prohibitions against retaliation, and require employers to provide notice of rights to employees.

Q. Can I fire employees while they are on leave?
A. Considering that both the federal and state law provider for job protection while on leave, as well as anti-retaliation provisions, an employer could be subject to serious liability if terminating an employee on leave. With that said, under the federal law, an employer can lay off “on-leave employees” for legitimate business reasons, such as business closure. The general rule is that the employer must be able to demonstrate that the employee would have been laid off even if leave had not been taken. Additionally, under the federal law, an employer with less than 25 employees can refuse to return an employee to his/her position following leave taken to care for a child due to school closures/unavailability of child care provider, if all four of the following hardship conditions exist:
• The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave;
• The employer made reasonable efforts to restore the employee to the same or equivalent position;
• The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
• The employer continues to make reasonable efforts to contact the employee for for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the leave began, whichever is earlier. This last exception would also apply to employers with more than 25 employees when dealing with an employee who is a highly compensated “key” employee (as defined under the FMLA), assuming all other conditions are met.

Q. In what critical ways do the laws passed in response to COVID-19 differ from prior paid sick leave/family leave laws?
A. While the laws obviously depart significantly from prior standards in response to the unprecedented crisis, a couple of key points stand out. The federal FFCRA expands the FMLA: previously, family leave was unpaid under the FMLA and now it is paid. The state and federal laws also differ from previous paid sick leave laws (such as New York City’s) in that the paid leave is automatically granted to employees and does not need to be accrued.

Q. Are the laws passed in response to COVID-19 permanent or temporary?
A. The state law does not seem to have an expiration date. The federal law expires on December 31, 2020.