March 19, 2020
Amid the COVID-19 pandemic, Governor Cuomo is moving swiftly to provide protections and leave for New York employees. On March 18, 2020, Governor Cuomo signed an executive order, effective Friday, March 20, 2020, at 8:00 pm, requiring businesses to implement Work From Home policies and those businesses that rely on in-office personnel to reduce their in-office workforces by 50 percent. Certain essential businesses are exempt.
He also signed legislation giving New York State employees job-protected sick leave. The bill provides that employers must immediately provide job-protected leave for their employees who cannot go to work because they are subject to mandatory or precautionary orders to quarantine. The scope of the obligations depends on employer size as of January 1, 2020, and 2019 net income:
Employers with 10 or Fewer Employees:
Employees subject to mandatory or precautionary quarantine orders are allowed unpaid sick leave until the termination of any mandatory or precautionary order is lifted. Such employees are immediately eligible to elect Paid Family Leave (“PFL”) due to disability, the definition of which has been amended to include “any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her” as a result of a mandatory or precautionary quarantine order issued by the government.
Employers with 10 or Fewer Employees with a Net Income Greater Than $1 Million in 2019 and Employers with Between 11 and 99 Employees:
Employees subject to mandatory or precautionary quarantine orders are allowed at least 5 days of paid leave and unpaid sick leave until the termination of any mandatory or precautionary order.
After the 5 days of paid leave are exhausted, the employees can elect to take PFL.
Employers with 100 or more Employees:
Employees subject to mandatory or precautionary quarantine orders are allowed at least 14 days of paid leave and unpaid sick leave until the termination of any mandatory or precautionary order.
The bill also provides that employees can take PFL for purposes of caring for a minor dependent child who is subject to a mandatory or precautionary quarantine order.
For employers whose workplaces have been closed due to COVID-19 but who would otherwise be subject to the leave bill, the waiting period for any affected employee’s claim for unemployment benefits is waived.
Importantly, the bill requires that any employee returning from leave, whether paid or unpaid, be restored to their previous position, with the same pay and other terms and conditions of employment.
There are two significant exceptions to the requirement to provide leave to employees impacted by mandatory or precautionary quarantine orders. First, if employees are physically capable of working remotely (i.e., they are not actually sick) and the employer provides them with that opportunity, the employees do not have to be provided unpaid or paid leave. Second, an employee who knowingly travels to a country for which the CDC has issued a Level 2 or Level 3 health warning, and does so not at the direction of the employer and after being advised of the health warning, shall not be entitled to the paid leave provided for in the bill. However, such employees must be allowed to use any accrued leave followed by unpaid leave.
The bill anticipated the passage of the federal Families First Coronavirus Act, or other federal laws, which also provide for paid and unpaid leave and job protection for certain employees due to the COVID-19 pandemic. The New York bill provides that the benefits required under the New York law are not available to those who qualify for federal benefits except to the extent the New York benefits exceed what is provided for under the federal law.