As COVID-19 continues to spread, New York State has enacted new legislation, effective immediately, to provide employees with additional paid sick leave and expanded coverage under its existing statutory paid family leave and disability benefits programs. These benefits are designed to give employees protected time off as employers endeavor to comply with New York Governor Andrew Cuomo’s most recent Executive Order, which requires that all employers in the state shall, to the maximum extent possible, implement telecommuting or work from home procedures, and mandates that 100% of employers’ in-person workforce must stay home, provided that any essential business or entity providing essential services or functions, as identified here, shall not be subject to the in-person restrictions.

Sick Leave

Subject to certain exceptions set forth below, New York employees that are covered by a government-issued mandatory or precautionary order of quarantine or isolation related to COVID-19—which includes Governor Cuomo’s most recent Executive Order—are entitled to the following sick leave benefits, based on certain characteristics of their employer:

  • Employers with one to 10 employees and under $1 million in net income: Not required to provide paid sick leave but must provide employees with unpaid sick leave until termination of the applicable order
  • Employers with one to 10 employees and over $1 million in net income and employers with 11 to 99 employees: Required to provide employees with five days of paid sick leave as well as unpaid sick leave until termination of the applicable order
  • Employers with 100 or more employees: Required to provide employees with 14 days of paid sick leave

Paid Family Leave and Disability Benefits

  • The new law expands certain employees’ entitlement to New York State Paid Family Leave (PFL) and benefits under the New York Disability Benefits Law (DBL) for COVID-19-related reasons.
  • Prior to the enactment of this new law: (i) employees were only eligible to use PFL to care for children and other covered family members, not for their own illnesses; and (ii) DBL benefits were only available for an employee’s own injury or illness.
  • Under the new law, eligible employees of employers with fewer than 100 employees will be entitled to use PFL and DBL benefits for any days they are unable to work because of an applicable order for which they are not entitled to receive paid leave. The law does not address whether employees of employers with 100 or more employees may be eligible for such statutory benefits for qualifying COVID-19-related reasons.
  • Employees who are eligible for PFL and/or DBL benefits for qualifying COVID-19-related reasons may begin collecting such benefits on their first day of leave (after the expiration of any paid sick leave period) and may collect PFL and DBL benefits concurrently.

Additional Terms, Exclusions, and Conditions

  • The above sick leave entitlements are in addition to any unused sick leave employees have already accrued pursuant to their employer’s policies and/or existing statutory sick leave benefits.
  • At the conclusion of any leave period, employers must return any employee utilizing leave to the position the employee held prior to taking leave.
  • Employees who are asymptomatic or have not yet been diagnosed with a medical condition and who are still able to work while the applicable order is in place, through remote work arrangements or otherwise, are not entitled to benefits under the new law.
  • Any employee who engaged in personal travel to, and returned to the United States from, a country that the Centers for Disease Control and Prevention has issued a Level 2 or Level 3 travel health notice is generally not eligible for the leave benefits set forth above.
  • Employees eligible for benefits under the federal Families First Coronavirus Response Act (FFCRA) will be entitled only to the difference, if any, between the benefits provided under the FFCRA and the benefits that employees are eligible to receive under the New York legislation above. For more information on the FFCRA, please review our alert here.

Given that there is still a great deal of uncertainty around how this new legislation will be implemented, we will be monitoring any actions by the New York State Department of Labor and provide additional updates as more information becomes available.

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