By Amy L. Varel

As of the drafting of this article, the spread of Novel Coronavirus has already affected every business in New York State.   There has been a flurry of legislative action at both the Federal and State levels aimed at dealing with the wide-ranging economic impact of Novel Coronavirus.  Numerous small businesses have had to either stop operating or are having to make difficult decisions to keep operating.  Both Congress and the State Legislature passed legislation this week that provides some form of paid sick leave for employees impacted by Novel Coronavirus.  New York employers need to understand and implement the new paid sick leave laws immediately to ensure compliance.

FEDERAL LEGISLATION

The president signed the Families First Coronavirus Response Act (“FFCRA”) into law on March 18, 2020.   The FFCRA, which takes effect no later than 15 days after enactment and provides for, among other things, emergency paid sick leave and also extends the existing Family Medical Leave Act to provide for paid leave in some cases related to Coronavirus.  An employer is generally entitled to receive tax credits equal to 100% of the qualified sick leave and qualified family leave wages paid by the employer.

Emergency Paid Sick Leave

The FFCRA requires employers that have less than 500 employees to provide to each employee paid sick time at the employee’s regular rate of pay, capped at $511 per day and $5,110 in the aggregate, to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

The  FFCRA also provides that an employer that has less than 500 employees shall provide to each employee paid sick time at the rate of two thirds of the employee’s regular rate of pay, capped at $200 per day and $2000 in the aggregate, to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

(2) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or

(3) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Full time employees are entitled to receive 80 hours of paid sick time under the FFCRA.  Part time workers are entitled to a number of hours that such employee works on average over a two week period.

Employees are entitled to the FFCRA paid sick leave regardless of how long the employee has been employed by the employer.  An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time provided under the FFCRA.

The Secretary of Labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees from being required to provide paid leave when the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions if the imposition of such requirements would jeopardize the viability of the business as a going concern.

Expansion of Family Medical Leave Act

The Federal Family Medical Leave Act (FMLA) generally provides unpaid leave to employees that work for employers that have 50 or more employees.  An employee must have worked for the employer for at least 12 months to be eligible for FMLA leave.

The FFCRA expands the existing Federal FMLA to provide paid leave to an employee that is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable due to an emergency with respect to COVID-19 declared by a Federal, State, or local authority.

There are some important differences between FMLA and the recently enacted FFCRA expansion of FMLA.  One significant difference is that the FFCRA expansion provides paid leave for employees that work for an employer that has fewer than 500 employees, including employers that have less than 50 employees.  Another major difference is that employees are only required to have been employed by the employer for 30 calendar days to be eligible to receive coverage under the FFCRA FMLA expansion.

The first ten days of expanded FMLA leave may consist of unpaid leave.  An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.  Thereafter an employer is required to provide paid leave at the rate of 2/3 of the employee’s regular rate of pay capped at $200 per day and $10,000 in the aggregate.

If an employee qualifies for FMLA leave the employer is generally required to restore the employee to his or her original job upon a return from FMLA leave.  However, there are some exceptions to this requirement under the FMLA expansion for employers that have fewer than 25 employees.

The Secretary of Labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees from being required to provide the expanded FMLA benefits under the FFCRA.

NEW YORK LEGISLATION

On March 18, 2020, the governor signed legislation that guarantees job protection and paid sick leave for 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 (a “Quarantine Order”).  Employees that are deemed asymptomatic or have not yet been diagnosed with any medical condition and are physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means are not entitled to coverage. 

Employers with ten or fewer employers are required to provide job protected unpaid sick leave while a Quarantine Order is in effect.  Employees are eligible for paid family leave benefits and disability benefits.

Employers with ten or fewer employees that had net income of greater than one million dollars in the previous tax year and employers that have between 11 and 99 employees are required to provide at least five days of paid sick leave during the Quarantine Order.  After the expiration of such five days of paid sick leave, employees are eligible for paid family leave benefits and disability benefits.  

Employers with 100 or more employees and public employers are required to provide at least 14 days of paid sick leave to employees that are subject to a Quarantine Order.  Public employers include New York State, counties, cities, towns, villages, school districts and fire districts.

All leave must be provided without loss of the employee’s accrued sick leave.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.