On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”) which, among other benefits, guarantees free coronavirus testing, boosts unemployment insurance, and bolsters food safety programs. One of its main benefits, however, is to provide paid sick leave for employees.

Also on March 18, 2020, Governor Andrew Cuomo signed into law S. 8091, a bill that provides immediate assistance for New York workers dealing with the fallout of COVID-19 in the form of paid sick leave, benefits, and job protections. Under the new law, companies cannot fire or otherwise penalize New York employees for failing to show up to work when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. The law also makes disability and unemployment benefits immediately available to affected employees.

This Employment Law Alert focuses on and summarizes the provisions most relevant to employers.

Families First Coronavirus Response Act (“FFCRA”)

• Status: The FFCRA is effective within 15 days of its enactment and expires on December 31, 2020.
• Application:
  • The FFCRA applies to employers with fewer than 500 employees.
  • The FFCRA allows the Secretary of Labor to issue regulations exempting small businesses with fewer than 50 employees when the requirements would jeopardize the viability of the business.
• Paid Leave and Sick Time: In addition to any employer-sponsored leaves, the bill provides:
  • Full time employees with 80 hours (10 days) of paid sick time;
  • Part time employees with leave equal to the number of hours they work, on average, over a two-week period;
  • If an employee is in self-isolation because of a diagnosis, obtaining a medical diagnosis or care, or complying with a recommendation or order of a public health official or doctor due to coronavirus exposure or symptoms, the leave is to be paid at the employee’s regular rate of pay, limited to $511 per day ($5,110 in the aggregate).
  • If an employee needs to take leave to care for a family member who is sick or self-isolating or for a child whose school or childcare is closed or unavailable, the leave is to be paid at two-thirds of the employee’s regular rate, limited to $200 per day ($2,000 in the aggregate).
  • Leave is available for an employee who is (1) in self-isolation because of a coronavirus diagnosis; (2) obtaining a medical diagnosis or care, if experiencing symptoms of coronavirus; (3) complying with the recommendation or order of a public official or doctor because the employee has been exposed to coronavirus or is exhibiting symptoms thereof; (4) caring for a family member who is self-isolating because of a coronavirus diagnosis, or is experiencing symptoms, or has been exposed; or (5) caring for a child if the child’s school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.
• Required Policies and Notices: The FFCRA does not diminish the rights or benefits to which an employee is entitled under the employer’s regular leave policies. Employers cannot require employees exhaust regular paid leave before using emergency leave. Employers are required to provide notice regarding employees’ rights under the new law, and the US Department of Labor has made a model notice available for this purpose. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, posting this notice in a conspicuous place on its premises, or posting this notice on an employee information internal or external website.
• FMLA Expansions: The Family and Medical Leave Act (“FMLA”) is also expanded on an emergency basis:
  • Employees who have worked for qualified employers for at least 30 calendar days are now eligible.
  • Eligible employees may now take up to 12 weeks of leave for a “qualifying need related to a public health emergency.” Qualifying leaves are those needed to care for a son or daughter under 18 years of age, if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
  • The first 10 days of this emergency FMLA leave may be unpaid (although the employee may substitute paid leave for such time such as the emergency paid sick leave discussed above). After that, emergency FMLA leave for full time employees is to be paid at a rate not less than two-thirds of the employee’s regular rate of pay for the number of hours the employee would otherwise normally be scheduled to work for the remainder of this FMLA (up to 10 additional weeks), limited to $200 per day ($10,000 in the aggregate).
• Tax Credits: Employers are eligible for a payroll tax credit for the paid sick leave and the paid FMLA leave equal to 100% of the paid sick leave and the paid FMLA leave wages, subject to per employee caps of $511 per day for 10 days of sick leave if the employee is diagnosed and self-isolating, $200 per day for 10 days of sick leave if the employee receives paid sick leave while at home caring for someone who has the illness or their children due to school/daycare closures, and $200 per day for up to 50 days of FMLA.

S. 8091 – New York Sick Leave for Workers Affected by COVID-19.

• Status: S.8091 is effective immediately.
• Application:
  • Any New York employee who is subject to 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 order due to COVID-19 is eligible for the sick leave and job benefits provided under S. 8091.
    • However, an employee is not eligible for paid leave or any other paid benefits under this act if the employee became subject to such an order of quarantine or isolation (i) because they traveled to a country that the Centers for Disease Control and Prevention deems a level 2 or 3 travel health notice, (ii) the travel was not taken at the employer’s direction or as part of the employee’s employment, and (iii) the employee was provided notice of the travel health notice and of this limitation prior to travel. In this case, the employee will be eligible to use their accrued leave provided by the employer, if available, or otherwise shall be provided unpaid sick leave for the duration of the mandatory or precautionary quarantine or isolation.
    • Additionally, employees who are deemed asymptomatic or who have not yet been diagnosed with any medical condition and are physically able to work while under a mandatory or precautionary order of quarantine or isolation (e.g., remote working) are not eligible for sick leave, additional paid family leave or disability benefits under the act.
  • All employers are required to provide sick leave to eligible employees, but the amount and type of sick leave varies based on the number of employees.
• Unpaid/Paid Sick Leave: In addition to any other benefit provided under other laws—
  • Employers with 10 or fewer employees and a net income of $1 million or less: must provide eligible employees unpaid sick leave until the termination of any mandatory or precautionary order of quarantine or isolation, and employees will be eligible for paid family leave and disability benefits.
  • Employers with 10 or fewer employees and a net income greater than $1 million: must provide eligible employees at least 5 days of paid sick leave and unpaid leave until the termination of any mandatory or precautionary order of quarantine or isolation. After exhausting the 5 days of paid sick leave, employees are eligible for paid family leave and disability benefits.
  • Employers with between 11 and 99 employees: must provide eligible employees at least 5 days of paid sick leave and unpaid leave until the termination of any mandatory or precautionary order of quarantine or isolation. After exhausting the 5 days of paid sick leave, employees are eligible for paid family leave and disability benefits.
  •  Employers with 100 or more employees: must provide eligible employees at least 14 days of paid sick leave during any mandatory or precautionary order of quarantine or isolation.
• Expansions to Paid Family Leave and Disability Benefits Laws: S. 8091 expands the definitions of “family leave” under New York State’s Paid Family Leave law and “disability” under the Disability Benefits Law to include COVID-19-related uses. Employees are eligible for paid family leave and paid disability benefits pursuant to this act immediately on the first day of disability. These benefits may be paid concurrently, however, an employee may not collect more than $840.70 in paid family leave and $2,043.92 in disability benefits per week.
  • Family Leave: Employees may take leave from work when (a) the employee is subject to a mandatory or precautionary order of quarantine or isolation; or (b) to provide care for their minor child who is subject to a mandatory or precautionary order of quarantine or isolation.
  • Disability: The definition of “disability” includes an employee’s inability to perform the regular duties of their employment or duties offered by an employer as a result of a mandatory or precautionary quarantine or isolation period, upon exhausting sick leave.
• Unemployment Insurance Benefits: If a business closes because of COVID-19, the individual can immediately file for unemployment insurance benefits.
• Job Protection: Employers cannot penalize, discriminate or retaliate against employees for taking leave under this act.
• Interaction with Federal Leave Laws: The leave provisions under S. 8091 (including paid sick leave, paid family leave, and disability benefits) are not available unless they are in excess of benefits provided under similar Federal law, in which case the employee may claim both the Federal law benefits and the additional state leave or benefits to the extent the state benefits exceed the leave or benefits provided under Federal law).

If you have any questions regarding the applicability of or requirements under the FFCRA, S. 8091, or any other employment law, please contact Anne C. Patin at (212) 574-1516 or Julia C. Spivack at (212) 574-1373.

Seward & Kissel has established a COVID-19 Resource Center on our web site to access all relevant alerts that we distribute.