Business Council of NYS Offers Webinar on Coronavirus Impact on Workplace

Below is complete information from the Business Council of New York State on workplace developments with regard to sick leave and the coronavirus:

First the good news. Not wanting to appear to impose a new “permanent” sick leave mandate on employers in time of crisis, the bill signed last night by Governor Cuomo does not include the mandate

that employers provide job protected sick leave beyond the leave required during the coronavirus crisis. The bill passed last night only includes provisions for employees (or employees caring for minor children) under a 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 an order due to COVID-19. These provisions are effective immediately.

If you are an employer of 99 or less your immediate obligations are to:

• Notify employees of the availability of leave as described below (no template for this notification has yet been provided)
• To provide job protected leave as described below
• Provide forms required for employee to apply for Paid Family Leave (PFL) and New York State Short Term Disability (DBL)
• Employers of 100 or more only need to provide paid sick leave as required.

Provisions of the New York law include:

Employers of 10 or fewer as of January 1, 2020 must provide unpaid, job protected sick time during an employee’s period of ordered quarantine or isolation, except those employers with net income of more than $1 million, which must provide five days of paid sick leave

Employers of 11 to 99 must provide five days of paid sick leave

Employers of 100 or more must provide up to fourteen days of paid sick leave

Public employers must provide at least fourteen days of paid sick leave

Benefits would not be available to employees deemed asymptomatic or not yet diagnosed with any medical condition and is physically able to work, through remote access or other means

NOTE: Such sick leave shall be provided without loss of an employee’s accrued sick leave. That is, this leave is in addition to whatever leave is already provided by the employer and is to be used first.

This leave is job protected and employees are, interestingly, not eligible to use this leave if the employee is returning from personal travel to one of the destinations on the CDC travel advisory list. These employees would be able to use any available employer provided leave time or, absent that, unpaid sick leave for the duration of the quarantine.

For employers of 99 employees or less, should an employee’s period of quarantine or isolation extend beyond available sick time as described above, the employee would be able to apply for Paid Family Leave (PFL) and New York State Short Term Disability (DBL) concurrently – as you know this is not possible under current law. Benefit amounts would be a combination of payments from PFL and from DBL up to 100% of an employee’s average weekly wage for those employees earning up to $150,000 per year. For example:

An employee making $150,000 per year ($2,884.62 per week) may be eligible for:

$840.70 payment from PFL (60% of average weekly wage to the 2020 maximum benefit amount), and

$2,043.92 payment from DBL (a significant – temporary increase over the current maximum of $170/wk.)

Additionally, there is no waiting period for the commencement of DBL payments under these circumstances. PFL/DBL benefits may also be used to care for a dependent minor child under such a mandatory quarantine of isolation order; this provision does not apply in cases where the child’s school is closed and requires daycare.

The law also provides for the creation of a risk adjustment pool to help stabilize the DBL/PFL insurance carrier industry. Also, if federal COVID-19 benefits are approved, these state benefits would only apply if they would provide employee benefits in excess of what is available under federal law. Currently the US Congress is considering legislation that may expand the Family and Medical Leave Act and/or require paid sick days during the COVID-19 crisis.

Again, as mentioned above, there is no longer any obligation to provide on-going, permanents paid sick leave as described in yesterday’s memo. It is anticipated that a new bill with this mandate will resurface at some time in the future.