In response to the COVID-19 pandemic, Governor Cuomo signed into law on March 18, 2020 the New York COVID-19 Sick Leave Law, S. 8901 (the “Law”). The Law, which was effective immediately, requires employers regardless of size to provide sick leave to their eligible employees who physically work in New York State. The sick leave to be provided is paid or unpaid leave, depending on the size and net income of the employer. Guidance issued by New York State on March 25, 2020 is attached to this Legal Advisory.

Eligibility

Employees are eligible for sick leave under the Law if they are unable to work due to a mandatory or precautionary “order of quarantine or isolation” due to COVID-19 issued to them by the State of New York, the New York State Department of Health, a local New York Board of Health, or any New York government entity authorized to issue such an order, even if that order was issued prior to the March 18, 2020 effective date of the Law.

If the employee is unable to work because the school of his or her minor dependent child is closed due to a mandatory or precautionary “order of quarantine or isolation” issued to the school by the State of New York, the New York State Department of Health, a local New York Board of Health, or any New York government entity authorized to issue such an order, the employee may be eligible to take paid family leave under the New York Paid Family Leave Law (the “NYPFL Law”).

An employee is not eligible for leave under the Law if:

• the employee is not subject to a mandatory or precautionary “order” of quarantine or isolation due to COVID-19, or the employee’s child’s school is not subject to such an order;
• the employee is able to work remotely;
• the employee is asymptomatic or has not yet been diagnosed;
• no work is available; or
• the employee is subject to quarantine because of voluntary non-business travel to a country for which the Centers for Disease Control had issued a level two or three travel advisory, the travel advisory was provided to the employee, and the employee nevertheless chose to travel. However, such employee is eligible to use accrued leave provided by the employer, or to the extent that the employee does not have sufficient accrued leave, unpaid sick leave for the duration of the mandatory or precautionary quarantine or isolation.

The Law is, thus, significantly narrower in its coverage than the recently enacted Families First Coronavirus Recovery Act (the “FFCRA”).

Required Paid/Unpaid Leave

¹The Act and guidance do not state whether the number of employees is to be calculated only on New York-based employees or all employees (wherever situated). We assume the calculation is determined by New York-based employees.

For hourly, part-time, commissioned salespeople, and other employees who are not paid a fixed wage, including temporary employees, employers should determine the employee’s pay by looking at a “representative period” of time to set the employee’s average daily pay rate. Employers should pay part-time employees for the number of days/amount of time during the 5 or 14 day period that they are entitled to receive paid sick leave, the pay they would otherwise have received if the employer’s operations continued in its normal course.

The Law does not require employees to be paid for unused COVID-19 sick leave upon the termination of their employment.

Documentation

Although the Law and guidance are silent on the right of an employer to request documentation that an employee is subject to an “order of quarantine or isolation”, we assume that employers can request a copy of the order as a condition of granting paid sick leave, since such documentation is required by employees to apply for NYPFL benefits and disability benefits.

Interplay with Other Laws

Employers must provide COVID-19 sick leave to eligible employees in addition to any employer- provided sick leave, and New York State or local mandates such as the NYC Earned Safe and Sick Time Act, the Westchester County Earned Sick Leave Law, the NYPFL Law, and New York disability benefits.

The Law expressly provides that the sick leave and/or benefits to be received under the Law will not be in addition to the sick leave and/or benefits provided by any federal COVID-19 law or regulation (such as the FFCRA). Thus, if employers are also subject to the FFCRA, their employees must take FFCRA paid leave and benefits first. If the Law provides leave or benefits greater than are allowed under the FFCRA, employees can claim additional leave and benefits under the Law only to the extent the sick leave and/or benefits available under the Law are more generous than the sick leave and/or benefits available under the FFCRA.

Job Restoration and Protection From Retaliation

Employees who take leave under the Law generally must be restored to their former positions (with the same pay and other terms and conditions of employment) upon return from leave. Employers may not discriminate or retaliate against employees because they have taken leave under the Law.

Although the Law and guidance do not address the issue, we assume that the Law (like the federal Family and Medical Leave Act) does not prohibit employers from taking employment actions for legitimate business reasons, such as layoffs that would have occurred regardless of whether an employee took leave under the Law.

Enforcement

No private right of action exists for violation of the Law. Instead, employees may file complaints against their employers with the New York State Department of Labor.
Further Steps
Employers should consider revising existing sick leave policies with temporary provisions that account for the new federal and state laws.*

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For more information about this Legal Advisory or assistance with compliance, please contact Paul
Pincus at (212) 588-0022 or php@orllp.legal.

* This Legal Advisory is provided for informational purposes only. It does not constitute legal or tax advice. Recipients should consult with their own legal and tax counsel before taking any actions based on the information contained in this Advisory.