Yesterday, the State of New York enacted emergency legislation to confer immediate job protection benefits to New York employees.  The new law provides for paid and unpaid sick leave, family leave benefits, and temporary disability benefits to New York employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the department of health, local board of health, or any governmental entity duly authorized to issue such order, due to COVID-19.

The draft bill initially also included an amendment to New York’s labor law to include a permanent and comprehensive paid sick leave policy that is unrelated to the COVID-19 emergency relief.  That portion of the bill, however, was not included in the final enacted bill.

COVID-19 Related Sick Leave Benefits

As set forth below, based upon the employer’s size, the new law, that takes effect immediately, requires that employers provide the following benefits to employees during the employees’ period of quarantine or isolation issued by the State of New York, the department of health, local board of health, or any governmental entity duly authorized to issue such order, due to COVID-19:

• For employers with 10 or fewer employees and a net income of less than $1 million, each employee subject to quarantine or isolation shall be provided with unpaid sick leave until the termination of any order of quarantine or isolation, and during the period of quarantine or isolation the employee shall be eligible for paid family leave benefits and disability benefits.
• For employers with 10 or fewer employees and a net income greater than $1 million, each employee subject to quarantine or isolation shall be provided with at least five days of paid sick leave and unpaid leave until the termination of any order of quarantine or isolation, and after such five days of paid sick leave the employee shall be eligible for paid family leave benefits and disability benefits.
• For employers with between 11 and 99 employees, each employee subject to quarantine or isolation shall be provided with at least five days of paid sick leave and unpaid leave until the termination of any order of quarantine or isolation, and after such five days of paid sick leave the employee shall be eligible for paid family leave benefits and disability benefits.
• For employers with 100 or more employees, and for public employers, each employee subject to quarantine or isolation shall be provided with at least 14 days of paid sick leave during any order of quarantine or isolation.

The above sick leave benefits shall be provided without loss of an employee’s accrued sick leave provided by the employer.  The law further provides that, upon return to work following leave taken pursuant to the act, the employee shall be restored to the position of employment held prior to any leave with the same pay and other terms and conditions of employment, and employers shall not discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to the act.

The act sets forth certain exceptions to the above leave benefits.  An employee will not be entitled to paid sick leave benefits, or any other paid benefits provided by the act, if the employee is subject to quarantine because the employee has returned to the United States after traveling to  a country for which the CDC has a level two or three travel health notice and the travel to that  country was not taken as part of the employee’s employment or at the direction of the employer and the employee was on notice of the travel restrictions; however, such employee shall be eligible for accrued leave provided by the employer and unpaid sick leave for the duration of the ordered quarantine.  The act also does not apply in cases where an employee is deemed asymptomatic or has not yet been diagnosed with any medical condition, and is physically able to work while under an order of quarantine or isolation, whether through remote access or other similar means.

Finally, the act provides that if at any point the federal government provides sick leave and/or employee benefits for employees related to COVID-19, then the provisions of the act shall not be  available; provided, however, that if the act would have provided sick leave and/or employee benefits in excess of the benefits provided by the federal government, then the employee shall  be able to claim such additional sick leave and/or employee benefits in an amount that is the difference between the benefits available under the act and the benefits available to the employee under the federal law or regulation.  The federal government passed its own relief act the same day the New York act was passed — the Families First Coronavirus Response Act — that expands family and medical leave and provides paid and unpaid leave benefits for workers affected by COVID-19 under federal law.  Accordingly, the benefits provided under the New York law will need to be compared and reconciled with benefits provided under the new federal law pursuant to this section.

If you have any questions about this client alert, please contact your SGR Labor and Employment counsel.