New York’s Paid Sick Leave, Disability Leave, and Family Leave Protections in the Wake of COVID-19

Under the bill, public and private employers have an obligation to provide some level of paid or unpaid sick leave, family leave and disability leave based on the number of employees employed by the employer as of January 1, 2020. Since the federal government enacted its own emergency federal sick leave and paid family leave policies on March 18, 2020 in H.R. 6201, employees are only entitled to New York mandated paid sick leave, disability leave, and family leave to the extent the state benefits exceed those provided for by federal law.

Most notably, Senate 8091 provides disability leave protections to employees affected by a COVID-19 order, an offering that is not provided under federal law. It also provides for greater sick leave protections, principally for part-time employees. Here’s what you need to know.

New York State Paid Sick Leave

While federal legislation H.R. 6201 affords paid sick leave to employees for a host of different reasons related to COVID-19, New York’s Senate 8091 grants sick leave to employees who are required to stay home as a result of a mandatory or precautionary COVID-19 order of quarantine or isolation issued by New York State, the department of health, the local board of health, or any governmental entity duly authorized to issue such order.

Employers with fewer than 11 employees must provide full-time employees with 80 hours of paid sick leave pursuant to federal law. Part-time employees are due paid sick leave for the average of hours they work in a two week period under federal law. In some instances, however, a part-time employee may enjoy increased paid sick leave under state law vs. federal law. For example, if a part-time employee averages less than 40 hours in a two week time period, state law will allow for the employee to receive five days of paid sick leave if the employer has a net income of more than one million dollars in the previous tax year.

Once paid sick leave is exhausted, under Senate 8091, full-time and part-time employees are entitled to unpaid sick leave until the termination of any mandatory or precautionary COVID-19 order. Employees under mandatory or precautionary quarantine or isolation order are also eligible for a paid family leave and/or disability leave.

For employers with 11 to 99 employees as of January 1, 2020, they must provide full-time employees with 80 hours of paid sick leave pursuant to federal law and part-time employees with paid sick leave for the average of hours they work in a two week period. Where a part-time employee works less than 40 hours on average in a two week period, the employee is nonetheless entitled to at least five days of paid sick leave under state law, and unpaid leave until the termination of the COVID-19 order. After the five days of paid sick leave, the employee is also eligible for paid family leave and disability leave pursuant to state law.

For employers with 100 or more employees, they must provide each employee at least 14 days of paid sick leave, far more than what is required under federal law.

For public employers, each officer or employee is entitled to 14 days of paid sick leave. The paid sick leave provided for under Senate 8091 will not affect or alter an officer’s or employee’s accrued sick leave balance. Generally, a public employer includes, among other things, the state, a county, city town or village, a school district board of cooperative educational services, vocational education and extension board or a school district, and government entity operating college or university. Officers and employees are entitled to compensation at their regular rate of pay for the regular work hours they are absent from work due to a COVID-19 order.

Upon return to work from taking leave under the act, officers and employees entitled to be restored to their former position are further protected from being discharged, threatened, penalized or discriminated or retaliated against for taking paid sick leave.

Employees who 1) travel to a country for which the Centers for Disease Control and Prevention has a level two or three travel health notice, 2) when travel to that country was not taken as part of the employee’s employment or at the employer’s direction, and 3) health limitations were provided to the employee beforehand, render themselves ineligible to invoke sick leave benefits under Senate 8091. In these circumstances, an employee may use accrued leave or unpaid sick leave instead.

New York State Paid Disability Leave

Senate 8901 extends existing disability leave provided by Section 204 of the New York State worker compensation law to employees affected by a COVID-19 order by broadening the definition of “disability.” Now, disability under New York’s workers’ compensation law includes an 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 as a result of a mandatory or precautionary order of quarantine or isolation. If an employee has a “disability,” when the employee has exhausted all paid sick leave the employee may immediately seek disability leave benefits on the first day the employee experiences an inability to perform their work duties as a result of a COVID-19 order. Under Section 205, an employee may receive disability leave benefits for up to approximately 26 weeks. The weekly benefit for disability leave equals 50% of the employee’s weekly wage, but in no case will the weekly benefit exceed $170; $20 is the minimum weekly benefit that will be offered to an employee.

New York State Paid Family Leave

Similarly, Senate 8091 extends existing family leave provided by Section 204 of the New York State worker compensation law to employees affected by a COVID-19 order.  In this regard, Senate 8091 broadens the definition of “family leave” to include leave taken by an employee from work when the employee is subject to a COVID-19 order or to provide care for a minor dependent child of the employee who is subject to a COVID-19 order. Under Section 204, an employee may receive paid family leave for up to ten weeks during any 52 week period. The family leave equals 60% of the employee’s average weekly wage, but shall not exceed 60% of the state average weekly wage.

Employees who qualify for both disability and family leave benefits may receive the benefits concurrently.

New York State Unemployment Insurance Benefits

Lastly, Senate 8091 provides employees with the ability to seek unemployment benefits based on an employer’s closure because of a COVID-19 order. Employees who file claims for unemployment on this basis will not be subject to a waiting period. Employees can and are encouraged to file for unemployment insurance benefits online.

We at Arent Fox are available to assist if you have any questions or need help navigating the requirements of the new COVID-19 laws. We will continue to monitor the guidance issued by New York State and/or the federal government to enable you to best understand your obligations.