On March 18, 2020, New York State enacted the Quarantine Leave Law (“Law”) which provides for additional paid and unpaid leave, as well as an expansion of the state’s paid family leave and disability benefits, to certain employees who are “subject to mandatory or precautionary orders of quarantine or isolation… issued by the State, the Department of Health, local board of health or any government entity authorized to issue such order” related to COVID-19. The law became effective immediately.
To address the immediate need of any employee affected by COVID-19 who is subject to mandatory or precautionary orders of quarantine or isolation, the Law provides the following benefits:
- Employers with 10 or fewer employees and a net income less than $1 million must provide job protection for the duration of the quarantine order.
- Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million must provide at least 5 days of paid sick leave and job protection for the duration of the quarantine order.
- Employers with 100 or more employees, as well as all public employers (regardless of number of employees), must provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.
Importantly, the current “New York State on PAUSE” requirement that all non-essential businesses close or only allow work from home does not entitle displaced workers benefits under the Law. An order of “quarantine or isolation” is an order of a public health official that encompasses a specific individual; the recent “stay at home” order by Governor Cuomo is not an order of “quarantine or isolation.” In other words, New York State on PAUSE is based upon Executive Order 202.8, which does not meet the definition of a mandatory or precautionary order of quarantine or isolation.
Additionally, employees who are asymptomatic or have not yet been diagnosed with any medical condition and are physically able to work remotely during the quarantine or isolation order are exempt from the Law. Moreover, leave benefits are not available to an employee who is quarantined or isolated because the employee returned to the United States from non-work travel to a country cited by the CDC as a “level two or three travel health notice,” if the individual received the CDC’s notice and was informed of this exception prior to travelling. Those employees must be allowed to use their other “accrued leave” or, if they do not have any available for use, must be provided unpaid leave for the duration of the quarantine or isolation.
It is not clear how the Law impacts sick leave under an employer’s policy. While the Law provides that paid quarantine leave must be granted “without any loss of an employee’s accrued sick leave,” it is unclear if the Law’s reference to “accrued sick leave” in this context refers only to benefits mandated by law or also to benefits provided under an employer’s policy.
The Law provides a carve-out for the Federal “The Families First Coronavirus Response Act” (“Federal Act”), which also provides paid leave time to employees related to COVID-19 absences (our
Client Alert on the Federal Act
). Accordingly, once the Federal Act becomes effective on April 2, 2020, the COVID-19 leave provisions under the New York Law will not be available unless the leave provisions under the New York Law provide benefits in excess of the benefits provided by the Federal Act. For example, employees of employers with more than 500 employees will remain covered by the New York Law because, as currently written, they will not be covered by the Federal Act.
The Quarantine Leave Law also expands employee entitlement and benefits provided by the government under the New York State Paid Family Leave (“PFL”) and the Disability Benefits Law (“DBL”) during any period of mandatory quarantine or isolation. By way of background, under PFL, virtually all employees in New York are entitled to paid family leave benefits provided by the Government for time off needed to care for family members. DBL benefits are also paid by the government and available only in the event of an employee’s leave due to personal injury or illness.
Pursuant to the Quarantine Leave Law, eligible employees of private employers with fewer than 100 employees will be entitled to PFL and enhanced DBL benefits for any days of a quarantine for which they are not entitled to receive paid quarantine leave. The Law is silent on whether employees of employers with 100 or more employees may be eligible for such statutory benefits. Employees who are eligible for PFL and/or DBL benefits may begin collecting such benefits on their first day of quarantine leave, if not otherwise entitled to paid leave, as the normal waiting period is eliminated for purposes of the Law.
Significantly, eligible quarantined employees are also entitled to collect PFL and DBL benefits concurrently (which is otherwise prohibited under current law), up to 100 percent of their average weekly wages for those earning up to $150,000 per year, subject to weekly limits of $840.70 (PFL) and $2,043.92 (DBL). The definition of “maximum weekly benefit” under the DBL is temporarily and significantly increased from $170.00 to $2,043.92 per week for this purpose.
The law, while well intentioned, is unclear on many points and there will, undoubtedly, be many questions. The New York State Department of Labor is authorized to promulgate emergency regulations and issue guidance which, hopefully, will shed some light on the answers to these questions.
In these unusual and trying times, we wish you well. Please remember that our Team is available to support you.
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If you have questions or would like additional information, please contact EGS’s Employment Law Practice Group Leader, Amanda M. Fugazy at
[email protected]
or the primary EGS attorney with whom you work.
