On Thursday, March 19, 2020, New York State enacted a law requiring that New York State employers provide job-protected time off (in some cases, paid time off) to employees who are affected by the novel coronavirus (COVID-19) in certain ways (the "NY COVID-19 Law").
New time off requirements for New York State employers
The NY COVID-19 Law requires that, for each employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the State of New York or certain other government entities due to COVID-19 (a "COVID-19 Order"), employers provide job-protected time off until the termination of the COVID-19 Order, as follows:
- Employers with 10 or fewer employees. For employers with 10 or fewer employees and net income of US$1 million or less in the previous tax year, the time off can be unpaid. For employers with 10 or fewer employees and net income of more than US$1 million in the previous tax year, at least five days must be paid time off, and the remainder of the time off can be unpaid.
- Employers with 11 to 99 employees. For employers with between 11 and 99 employees, at least five days must be paid time off, and the remainder of the time off can be unpaid.
- Employers with 100 or more employees. For employers with 100 or more employees, at least 14 days must be paid time off.
The number of employees is determined as of January 1, 2020.
The NY COVID-19 Law provides that such time off will be provided without any loss of an employee's other accrued sick leave (i.e., an employee's time off under the NY COVID-19 Law is in addition to other sick leave that the employee has, such as under a company policy or pursuant to the New York City safe and sick time law). Following any period of paid time off due to a COVID-19 Order, employees of employers with fewer than 100 employees will be eligible for New York State short-term disability and paid family leave benefits for the remainder of the quarantine period. The NY COVID-19 Law seems to assume, though does not explicitly state, that the maximum period of a COVID-19 Order would be 14 days.
The NY COVID-19 Law contains an exception from the aforementioned paid time off requirements if, under certain circumstances, an employee becomes subject to a COVID-19 Order because the employee traveled to a country that the CDC has designated as high-risk for COVID-19.
Job protection requirements
After taking time off due to a COVID-19 Order, an employee must be restored by his or her employer to the same position held by the employee prior to taking the time off, with the same pay and other terms and conditions of employment. The NY COVID-19 Law prohibits discrimination and retaliation against any employee for taking time off due to a COVID-19 Order.
NY COVID-19 Law does not apply to certain employees who can work remotely
The NY COVID-19 Law will not apply to cases where an employee is asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a COVID-19 order, whether through remote access or other similar means.
New York State benefits offset by benefits mandated by federal law
Employees are only entitled to benefits under the NY COVID-19 Law to the extent that the NY COVID-19 Law provides benefits in excess of the benefits provided by federal law. Note that the federal government has recently enacted the Families First Coronavirus Response Act (FFCRA), which, among other things, provides certain employees (mainly those working for employers with fewer than 500 employees) with up to 80 hours of paid time off for various reasons related to COVID-19, including the employee being subject to a COVID-19 Order. For more information about the FFCRA, see US: New federal coronavirus response act provides paid leave requirements for some employers. The FFCRA goes into effect on April 2, 2020, and is scheduled to sunset on December 31, 2020. To the extent that an employee covered by the NY COVID-19 Law is entitled to paid time off benefits under the FFCRA, those benefits would offset any benefits to which they are entitled under the NY COVID-19 Law.
Accelerated unemployment benefits for employer closures
The NY COVID-19 Law provides that employees who lose their jobs as a result of their employer closing for a reason related to COVID-19 may receive New York State unemployment benefits without being subject to any waiting period.
NY COVID-19 Law takes effect immediately
The NY COVID-19 Law went into effect immediately upon its enactment. Therefore, New York State employers should take action to comply with it immediately. This is in contrast with the FFCRA which, as noted above, does not go into effect until April 2, 2020. We would be happy to assist your company with complying with the NY COVID-19 Law.