New York now has the highest number of confirmed COVID-19 cases in the United States, and, unfortunately, the number continues to increase on a daily basis. In efforts to contain the spread of the virus and support those employees who have been impacted, Governor Cuomo and the legislature have acted swiftly to enact responsive laws.
Relief for Employees on Orders of Quarantine or Isolation
On March 18, 2020, Governor Cuomo signed into law Senate Bill S809/ Assembly Bill A10153, which provides job protection and paid leave for New York employees subject to mandatory or precautionary orders 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 orders due to COVID-19. The law is effective immediately and provides sick leave to affected employees as follows:
- Employers with ten or fewer employees as of January 1, 2020 and a net income less than $1 million must provide affected employees with unpaid sick leave, along with job protection for the duration of the quarantine or isolation order and must provide those employees with access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine or isolation including wage replacement for their salaries up to $150,000.
- Employers with 11-99 employees and employers with ten or fewer employees as of January 1, 2020 and a net income greater than $1 million must provide at least five days of paid sick leave, and then unpaid sick leave until the termination of quarantine or isolation. Also, employers must provide job protection for the duration of the quarantine order and, after the five days of paid sick leave, guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of the quarantine including wage replacement for their salaries up to $150,000.
- Employers with 100 or more employees as of January 1, 2020, along with all public employers, regardless of the number of employees, must provide affected employees with at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine or isolation order.
This new paid sick leave must be provided in addition to any sick leave an employee has already accrued. With regard to job protection, the law states that affected employees must be restored to the same positions they held prior to their leave, with the same pay and other terms and conditions of employment. As such, the law explicitly prohibits discrimination and/or retaliation against affected employees for taking leave.
Significantly, the New York law provides that certain employees may not benefit from the sick leave benefits as outlined above. Affected employees who have traveled, for non-business reasons, to a country that the CDC has issued a level 2 or 3 travel health notice for, and who knew of the travel health notice prior to such travel, must use any accrued leave already provided by his/her employer. In the event the employee does not have accrued leave to use, unpaid sick leave must be provided to the employee for the duration of the quarantine or isolation period. Also, employees who are deemed asymptomatic or have not been diagnosed with any medical condition and are physically able to work through remote access while being quarantined or isolated will not be able to benefit from the law.
Of note, New York passed its law prior to the effective date of the federal Families First Coronavirus Response Act (FFCRA). The New York sick leave law makes clear that the benefits provided under its law cannot be in addition to any benefits and/or sick leave provided by the federal government in response to COVID-19. Under the FFCRA, full-time employees (of covered employers under the FFCRA) are entitled to 80 hours of emergency paid sick leave and part-time employees are entitled to an amount based on the average number of hours they work in a two-week period for qualifying reasons. Accordingly, employers will need to consider both New York and federal law and the interplay of these laws, in determining sick leave for eligible employees.
All Non-Essential New York Businesses Must Implement Remote Work Polices for Their Workforce
By way of Executive Order, on March 20, 2020, Governor Cuomo has directed that all businesses and not-for-profit entities considered to be “non-essential” implement work from home policies for all of its workforce, effective Sunday, March 22, 2020 at 8 p.m. through April 19, 2020.
Governor Cuomo initially called for only a 50 percent reduction in the in-person workforce, and then increased it to a 75 percent reduction, but ultimately mandated that all of New York’s non-essential workforce stay home after a dramatic increase in the number of diagnosed COVID-19 cases in the state. Essential businesses, which are not subject to the in-person restriction and can operate at the level necessary to provide such service or function, include essential healthcare operations, including research and laboratory services; essential infrastructure, including utilities, telecommunication, airports, and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail, including grocery stores and pharmacies; essential services, including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation, and essential operations of residences or other essential businesses; and vendors that provide essential services or products, including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public.
The Empire State Development Corporation—the umbrella organization for the New York State Urban Development Corporation and the New York Job Development Authority—has published guidance that provides further details on businesses deemed to be “essential” for purposes of Governor Cuomo’s Executive Order. Businesses not listed may write to the Empire State Development Corporation to request that they be deemed essential. In evaluating the request, the Empire State Development Corporation will consider whether it is in the best interest of the state to have the workforce continue at full capacity in order to properly respond to the COVID-19 pandemic.
If you have any questions or need assistance, please feel free to contact Christine A. Amalfe, Chair of the Gibbons Employment & Labor Law Department.
More in the “Coronavirus and Your Business” Series:
- Insurance Coverage in the Age of COVID-19
- Economic Loss Recovery/Minimization with State and Federal Programs
- Force Majeure Provisions in Contracts
- The Big Picture
- Litigation Issues That May Arise
- Workplace Planning for Coronavirus Concerns
- Business Survival and Yes, Success, During the Coronavirus Pandemic
- Federal Tax Responses to the Coronavirus Crisis
- Successful Crisis Management During a Pandemic
- Guidance for Healthcare Providers
- How Will the Coronavirus Crisis Affect 2020 Elections?
- Newly Passed Bills Boost NJ’s Healthcare Industry
- US Patent and Trademark Office Measures Taken in View of COVID-19 Outbreak: What Applicants and You Should Know