New State and Federal Laws Extend Sick Leave Criteria Due to COVID-19  

On March 18, Governor Cuomo signed legislation (S.8091/A.10153) that guarantees paid sick leave and other protections for private and public employees placed under mandatory or precautionary quarantine issued by New York State, the state Department of Health, local boards of health, or any governmental entity due to COVID-19.  

The amount of leave is contingent upon the number of employees the employer had as of January 1, 2020, and the size of the employer. The new law took effect immediately. 

The Sick Leave provisions include the following criteria: 

  • For employers with 1-10 employees: Each employee must receive unpaid sick leave until the termination of any mandatory or precautionary order of quarantine or isolation due to COVID-19, as well as the ability to immediately qualify for paid family leave and temporary disability benefits.
     
  • For employers with 1-10 employees and net income of greater than $1 million in the previous tax year: Each employee must receive at least five days of paid sick leave, and unpaid leave thereafter, until the termination of any mandatory or precautionary order of quarantine or isolation. After the five days of paid sick leave, an employee is eligible for paid family leave and temporary disability benefits.
     
  • For employers with 11-99 employees: Each employee must be provided with at least five days of paid sick leave, and unpaid leave thereafter, until the termination of any mandatory or precautionary order of quarantine or isolation. After the five days of paid sick leave, an employee is eligible for paid family leave and temporary disability benefits.
     
  • For employers with 100 or more employees: Employees must receive at least 14 days of paid sick leave to an employee under quarantine or isolation. Employers with 100 or more employees are not required to provide unpaid sick leave after the 14 paid days have been exhausted and the employee is still subject to the mandatory or precautionary order of quarantine. Under the new Sick Leave Law, employees who work for an employer with 100 or more employees are not eligible to apply for paid family leave or temporary disability benefits after the employee’s paid leave has been utilized.
     
  • For public employers: Public employees must receive at least 14 days ofpaid sick leave during any mandatory or precautionary order of quarantine or isolation. Each public employee must be compensated at his or her regular rate of pay for those regular work hours during which the employee is absent from work due to a mandatory or precautionary order of quarantine or isolation. Leave must be provided without loss of an officer or employee’s accrued sick leave. 

As for other protections, the new law states that employees must be restored by the employer to the employee’s position of employment held by the employee prior to any leave taken with the same pay and other terms and conditions of employment. It also includes anti-discriminatory and retaliation protections for employees. 

The Paid Sick Leave Law also expands the definition of “disability” under the Worker’s Compensation Law to include eligibility for disability benefits when an employee is unable to perform their regular duties because of a mandatory or precautionary quarantine or isolation. Additionally, an employee will be eligible to receive benefits on day one, as opposed to waiting seven days to receive other disability and Paid Family Leave benefits. 

An employee can collect the maximum payment from both Paid Family leave and disability benefits, not to exceed $840.70 in Paid Family Leave and $2,042.92 in benefits due to disability per week. However, the law provides that the maximum weekly benefit which the employee is entitled to receive for benefits due pursuant to disability as a result of “mandatory or precautionary order of quarantine or isolation” shall “be the difference between the maximum weekly family leave benefit and such employee’s total average weekly wage from each covered employer up to a maximum benefit due pursuant to disability of $2,043.92 per week.” 

A mandatory or precautionary order of quarantine or isolation is deemed to be sufficient proof of disability or proof of need for family leave. However, employees will not be eligible for sick leave “where an employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.”  

To ensure compliance, we encourage members to review the new law in its entirety (see here), as well as a memo (see here) developed by HCA’s legislative counsel, Hinman Straub, for specific information and details related to the new Paid Sick Leave Law. 

At this time, the new law only pertains to employees impacted by COVID-19. It is expected that additional Paid Sick Leave legislation will be negotiated in a final budget in the coming days that will include paid leave criteria in situations outside COVID-19. 

President Approves Coronavirus Response Act with Emergency Paid Sick Leave

President Trump also approved legislation known as the Families First Coronavirus Response Act on Wednesday, March 18. The new federal law expands access to Emergency Paid Sick Leave to as many as 87 million U.S. workers, according to the National Association of Home Care and Hospice (NAHC), and provides families with Emergency Paid Family Leave to address widespread and potentially prolonged school closures due to Coronavirus. 

The new law allows for a limited exception that is available to employers of “health care providers.” NAHC has indicated that the regulatory definition of “health care provider” for purposes of the Family and Medical Leave Act (FMLA) is limited to physicians and other practitioners, and does not extend to RNs/LPNs/LVNs, home health or hospice aides, or various other home care and hospice personnel.  

HCA is actively working with NAHC and other statewide associations to ensure legislative and/or regulatory protections for home care and hospice entities under this new law. 

For a list of eligibility provisions, please review the new law in its entirety (H.R. 6021/P.L. 116-127). We also encourage members to review federal COVID-19 updates from our federal retained lobbyists at Envision Strategies (see here).  

We will continue to keep members updated as more information becomes available regarding the new state and federal Paid Sick Leave laws. Please reach out to HCA’s Director for Advocacy and Public Policy Alyssa Lovelace (alovelace@hcanys.org) with questions or concerns.