As the U.S. is entering the third wave of COVID-19 as virus cases continue to rise nationwide, employers should not only be aware of their obligations under the federal Families First Coronavirus Response Act, but also recent state laws such as California’s COVID-19 Supplemental Paid Sick Leave and New York State’s COVID-19 Leave Law.
As we have discussed in a prior blog post, the Families First Coronavirus Response Act (FFCRA) requires private employers with 500 or fewer employees to provide paid sick leave generally when an employee is unable to work because the employee is experiencing COVID-19 symptoms or has a bona fide need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
California has enacted COVID-19 Supplemental Paid Sick Leave to cover employees not covered by the FFCRA. Specifically, the COVID-19 Supplemental Paid Sick Leave codifies Governor Newsom’s Executive Order N-51-20 requiring supplemental sick leave for food sector workers whose employers have 500 or more employees nationwide. Yet, the new law extends as well to non-food sector employees, specifically individuals employed by any private entity with 500 or more employees nationwide, public and private health care workers, and emergency responders whose employer have excluded them from emergency paid sick leave under the FFCRA. To be eligible for benefits, the non-food sector employees must leave their place of residence to perform work.
A qualifying employee is entitled to COVID-19 Supplemental Paid Sick Leave for one of the following qualifying reasons:
- The employee is subject to federal, state, or local quarantine or isolation orders related to COVID-19,
- A health care provider has advised the employee to self-quarantine or isolate due to COVID-19 related concerns, or
- The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.
Employees who are eligible for COVID-19 Supplemental Paid Sick receive the following benefits:
- For full time employees scheduled to work at least 40 hours per week, up to two weeks (80 hours) of supplemental paid sick leave.
- For part time employees, payment commensurate with their regularly scheduled hours for the total number of hours they are normally scheduled to work over a two-week period.
- Supplemental Paid Sick Leave must be paid at an hourly rate at the highest of the regular rate of pay for the last pay period, or the state/local minimum wage. These supplemental paid sick leave benefits are capped at $511 per day or $5,110 in total per employee.
Employers were required to provide COVID-19 Supplemental Paid Sick Leave for food sectors workers starting on April 16, 2020, and for all other qualifying employees starting September 19, 2020. The Supplemental Paid Sick Leave law remains in effect until December 31, 2020 or upon the expiration of any extension of FFCRA benefits, whichever is later. It is important to note that if a covered employee is on Paid Sick Leave when Supplemental Paid Sick Leave expires, the employee is entitled to finish taking the amount of leave they would have been entitled to receive.
Note that although the COVID-19 Supplemental Paid Sick Leave only applies to employees who are unable to perform remote work, California employers may be covered by a myriad of state and municipal paid sick leave laws that allow employees to use other available sick leave for certain COVID-related absences from work.
New York is another state that will soon require employers to provide COVID related benefits. The New York State Emergency Sick Leave (NYS COVID-19 leave) is one of many legislative paid leaves New York employees may be eligible for. The NYS COVID-19 leave must be provided in addition to an employee’s accrued leave under an employer’s leave policies, such as vacation, paid time off, and employer-provided sick leave.
An employee is eligible for NYS COVID-19 leave for one of the following qualifying reasons:
- The employee is subject quarantine or isolation due to COVID-19,
- The employee is caring for a minor dependent child subject quarantine or isolation due to COVID-19, or
- The employee is taking care of family member with COVID-19.
The employee is not eligible for NYS COVID-19 leave if the employee is able to work remotely. Employers obligations under the NYS COVID-19 leave vary depending on their size.
- Employers with 1-10 employees, as of January 1, 2020, and a net annual income of $1 million or less in 2019 must give their employees leave if the employee has a qualifying reason. The leave is funded by New York state paid family leave and disability benefits (PFL), which is insurance coverage that provides up to 60% of the employees pay, with a maximum weekly benefit of $840.70. After employees exhaust their PFL benefit they receive disability benefits to match their full wages up to a maximum weekly disability benefit of $2,043.92, for a total of $2,884.62 per week. There is no waiting period for either benefit.
- Employers with 1-10 employees, as of January 1, 2020, and a net annual income of over $1 million must provide at least five paid sick days. After the five days, the employee may use a combination of NYS Paid Family leave and disability benefits. During the five day period employers must pay the employee the amount the employee would have otherwise received had they been continuing to work for that period based upon the amount the employee was scheduled or would have been scheduled.
- Employers with 11-99 employees, as of January 1, 2020 mut provide at least five paid sick days. After the five days, the employee may use a combination of NYS Paid Family leave and disability benefits. During the five day period employers must pay the employee the amount the employee would have otherwise received had they been continuing to work for that period based upon the amount the employee was scheduled or would have been scheduled.
- Employers with 100 or more employees, as of January 1, 2020 must provide at least 14 paid sick days. During the 14 day period employers must pay the employee the amount the employee would have otherwise received had they been continuing to work for that period based upon the amount the employee was scheduled or would have been scheduled.
- Public employers of any size must provide at least 14 paid sick days. During the 14 day period employers must pay the employee the amount the employee would have otherwise received had they been continuing to work for that period based upon the amount the employee was scheduled or would have been scheduled.
The NYS COVID-19 leave went into effect March 19, 2020.
Like California, the NYS COVID-19 leave does not apply to employee are able to work from home. However, New York employees requesting leave may still be covered by the FFCRA. If a New York employer is covered by the FFCRA and NYS COVID-19 leave, employees may be eligible for both benefits. If the NYS COVID-19 leave benefit would be more than the federal benefit, the employee may be able to receive the federal benefit and the difference between the federal benefit and the NYS COVID-19 leave maximum benefit.
In addition to COVID-19 specific leave laws, New York employers should also be cognizant of the other recent leave laws passed by the New York State legislature. Beginning September 30, nearly every New York employer, with limited exceptions, must provide paid sick leave to its employees, which varies based on the size of the employer. Likewise, New York employers in Westchester County and Manhattan are subject to additional local requirements. Thus, it is imperative that employers carefully evaluate all of the leave laws that apply to them.
We will continue to monitor the emerging labor and employment regulatory landscape during the Coronavirus pandemic, and provide additional updates on these evolving issues. In the meantime, check out the webinar put on by Conn Maciel Carey’s COVID-19 Task Force in March addressing “How Employers Can Respond to COVID-19.”
For additional employer resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 FAQ Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about COVID-19 and other important Labor & Employment and OSHA issues. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.