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COVID-19 Employment Law Q&As

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 but not limited due to a quarantine (ordered by federal, state or local government or on advice of a health care provider), for the purpose of receiving a medical diagnosis (if exhibiting COVID-19 symptoms), or caring for a quarantined individual, or for a child who is home due to school closure.

The New York State Paid Family Leave law is narrower, and appears to address only COVID-19-related employee leave due to a formal government-ordered quarantine. The consensus appears to be that social distancing measures imposed by NYS are not an order of quarantine.However, this issue has not been addressed by New York State and additional guidance may take a different position.
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 main provisions are as follows:The federal FFCRA mandates that covered employers provide employees with: 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.  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 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.   Are there any exceptions or exemptions to these laws? ​A.  Under the federal FFRCA, certain health care providers may be exempt employees.Additionally, under the FFRCA, small business (under 50 employees) may elect to be exempt if able to demonstrate that the leave requirements would jeopardize the viability of the business as a going concern.Additionally, under both laws, healthy 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.
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.  This issue has not been addressed yet by guidance.Previously, under the FMLA, there was some support for the position that employers could, for legitimate non-pretextual reasons, fire employees who were on leave.However, 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.
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.

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Friday, August 14, 2020