By Joseph S. Brown, Esq.
On March 18, 2020, Governor Cuomo signed a bill requiring sick leave for employees in New York State. The law, which took effect immediately upon Governor Cuomo’s signature, guarantees leave to employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by New York State, the Department of Health, the local board of health, or any other authorized governmental entity due to COVID-19.
Last week, Governor Cuomo also issued a series of executive orders designed to deal with the COVID-19 outbreak, including a requirement that all non-essential businesses must reduce their in-person workforce by 100%.
Mandatory or Precautionary Quarantine or Isolation Order Due to COVID-19
The law creates a new section of the Labor Law, called NY Labor Law § 196-b, which will require employers to provide quarantined employees with sick leave as follows:
“Small” Employers: Employers with 10 or fewer employees and a net income less than $1 million will provide unpaid sick leave for the duration of the quarantine. Employees are also eligible for Paid Family Leave and disability benefits.
“Medium” Employers: Employers with 11-99 employees, and employers with 10 or fewer employees and a net income greater than $1 million, will provide at least 5 days of paid sick leave, and unpaid sick leave for the duration of the quarantine. Employees are also eligible for Paid Family Leave and disability benefits.
“Large” and Government Employers: Employers with 100 or more employees, as well as all public employers (regardless of number of employees), will provide at least 14 days of paid sick leave. Leave for public employees will not be charged against accrued sick time. There is no reference to Paid Family Leave or disability benefits for this category.
To be eligible for this type of leave, the employee must be subject to “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 government entity duly authorized to issue such order due to COVID-19.” Future regulations implemented could clarify this definition.
The law states that the above leave must “be provided without loss of the officer or employee’s accrued sick leave.” The law is not clear as to whether employers can rely on existing vacation, PTO, and other time off banks not designated as “sick leave” to satisfy their obligations under the new law. The New York State Department of Labor is authorized to issue regulations to implement the new law, and such regulations may provide clarity on this issue.
Employers must restore any employee who returns to work from COVID-19 quarantine leave to the position the employee held before taking the leave. The employee must receive the same pay and other terms and conditions of employment. The law prohibits discrimination and retaliation against employees for taking this leave.
The law includes several exceptions. Employees are not eligible for paid sick leave due to a COVID-19 mandatory or precautionary quarantine or isolation order if:
- they returned from traveling to a country for which the Centers for Disease Control and Prevention has issued a level two or level three travel health notice;
- that travel was not taken as part of the employee’s employment or at the direction of the employer; and
the employee was provided notice of the travel health notice and notice of the limitations contained in the new law prior to travel.
This exception does not affect an employee’s right to take accrued leave provided by their employer, or unpaid leave for the duration of the order of mandatory or precautionary quarantine or isolation.
Furthermore, the law does not apply at all if an employee: (1) is physically able to work while under a mandatory or precautionary quarantine or isolation order, through “remote access or similar means;” and (2) either is deemed asymptomatic, or has not yet been diagnosed with any medical condition. If both conditions are met, the employee is not entitled to any additional paid or unpaid leave.
Finally, the law does not bar employers from taking personnel actions unrelated to “any request to use, or utilization of, any leave provided by this act.” Presumably, this acknowledges that employers may discipline or even layoff or discharge employees due to performance, misconduct, or economic factors.
Disability Benefits and Paid Family Leave
The new law amends, for limited purposes, the definition of “disability” under the New York State Disability Benefits Law to mean:
any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19 and when the employee has exhausted all paid sick leave provided by the employee’s employer under the COVID-19 quarantine leave law.
For employees with such a disability, the law waives the standard 5-day waiting period before receiving disability benefits. This waiver allows qualifying employees to begin receiving disability benefits starting the first full workday that they miss due to COVID-19 quarantine or isolation.
The law appears to increase substantially the dollar amount of disability benefits potentially available for employees missing work for this purpose. Usually capped at $170 per week, disability benefits for qualifying employees on COVID-19 quarantine leave will be equal to the difference between the maximum family leave benefit and the employee’s average weekly wage, up to a maximum of $2,043.92.
The COVID-19 quarantine leave law also amends, for limited purposes, the definition of “family leave” under the New York State Paid Family Leave Benefits Law to mean:
(a) any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19; or
(b) to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19.
Significantly, part (a) of this revised definition provides for “family leave” in the case of the employee’s own quarantine or isolation due to COVID-19. This language is a significant departure from the existing NYS paid family leave provisions, which only apply to particular circumstances unrelated to the employee’s own medical condition.
Recent Executive Orders from Governor Cuomo
In response to the spread of COVID-19 in New York State, Governor Andrew Cuomo announced last week that all non-essential businesses must reduce their in-person workforce by 100% by Sunday, March 22, 2020 at 8:00 p.m. (after previously issuing executive orders that initially called for a 50% and a 75% reduction) available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.8.pdf
Late March 19, 2020, Empire State Development released guidance on the meaning of “Essential Businesses” available at https://esd.ny.gov/guidance-executive-order-2026
A business that does not meet any of the definitions in the guidance can request designation as an essential business by submitting a form to Empire State Development: https://esd.ny.gov/content/request-designation-essential-business-purposes-executive-order-2026. The website also has a Frequently Asked Questions page that it continues to update: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_032220.pdf
Businesses should take note that the Governor’s more recent executive order, 202.8, specifies that failure by an employer to comply would constitute a violation of unspecified provisions of the State’s Public Health Law, which provides for civil penalties of up to $2,000 per violation ($5,000 for repeat offenders) and injunctive relief. New York Attorney General Letitia James is encouraging workers to file complaints with the Attorney General’s Labor Bureau if they believe their employer is not complying with the Governor’s directives.
Finally, the Governor also suspended all state statute of limitations, including, “any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding,” under any state law, act, statute, local law, ordinance, order, rule or regulation, through April 19, 2020. Moreover, the EO clarifies that there shall be no enforcement of an eviction or foreclosure proceeding against any resident or commercial tenant for a period of 90 days.
Hurwitz & Fine has been regularly providing clients with guidance on compliance with Governor Cuomo’s executive orders.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Employment Practices team for guidance on this evolving issue at 716-849-8900 or visit our website at www.hurwitzfine.com