Effective immediately, and with limited exceptions, all New York employers must provide sick leave for any employee “who is subject to a mandatory or precautionary order of quarantine or isolation issued by New York, the department of health, local board of health, or any governmental entity duly authorized to issue such an order due to COVID-19.
The amount and type of sick leave (paid or unpaid) depends on the number of employees a business had as of January 1, 2020. In addition, businesses with ten or fewer employees must look at their 2019 net income. Based on those variables, employers must provide sick leave as follows:
- For businesses with ten or fewer employees as of January 1, 2020; and 2019 net income of less than $1 million: Unpaid sick leave (and any other benefit provided by any other law) to an employee under quarantine or isolation until the termination of any quarantine or isolation order. During the leave period, employees are eligible for New York State Paid Family Leave (“PFL”) and short-term disability benefits.
- For businesses with ten or fewer employees as of January 1, 2020; and 2019 net income of more than $1 million: At least five days of paid leave, and unpaid leave until the termination of any order of quarantine or isolation. After five days, the employee is eligible for PFL and short-term disability benefits.
- For businesses with between 11 and 99 employees as of January 1, 2020: At least five days of paid sick leave, and unpaid leave until termination of any quarantine or isolation order. After five days, the employee is eligible for PFL and short-term disability benefits.
- For businesses with 100 or more employees as of January 1, 2020: At least 14 days of paid sick leave.
Supplemental Sick Leave Benefit. These new benefits are in addition to any other sick leave already provided by the employer. They must be provided without loss to any other accrued sick leave.
Both the federal Families First Coronavirus Response Act, and the New York-specific act were passed on March 18, 2020. In anticipation of the federal act, the New York law provides that to the extent it overlaps with any federal sick leave and/or employee benefits law “related to COVID-19” the New York “quarantine law” benefits are “not available…provided, however, that if the provisions” of New York’s law provides for “sick leave and/or employee benefits in excess of the benefits provided by the federal [act]” an employee is entitled to “to claim such additional sick leave and/or benefits” in the amount of such difference.
Exceptions. New York’s leave law does not apply to an employee who is:
- Deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory quarantine through remote access or similar means.
- Subject to quarantine because: (1) the employee returned to the United States after traveling to a country for which the CDC has issued a level two or three health notice; and (2) such travel was not part of the employee’s employment or at the direction of the employer; and (3) prior to travel, the employee was provided notice of the travel health notice and the eligibility limitations under the law prior. However, the employee may use other accrued leave provided by the employer’s policy or unpaid sick leave for the duration of the quarantine or isolation.
Reinstatement. In addition,employees returning from this leave must be restored to the position they held prior to taking the leave, with the same pay and other terms of employment. Discrimination or retaliation for taking or requesting leave is prohibited.
Finally, employers should be aware that New York’s Short-Term Disability and Paid Family Leave programs have been expanded to provide coverage for COVID-19 quarantine-related absences (for more information see here).