Previously, we the April 1 federal paid leave laws and regulations under the Families First Coronavirus Response Act (“FFCRA”). Two weeks earlier, New York State enacted similar COVID-19 legislation providing paid sick leave to State employees subject to a mandatory or precautionary COVID-19 order of quarantine. Here we compare the benefit interplay among FFCRA, the NYS COVID-19 paid sick leave provisions, and New York City’s Paid Safe and Sick Leave Law, which took effect May 5, 2018, but now also provides additional categories for COVID-19 related reasons.
FREQUENTLY ASKED QUESTIONS:
How does FFCRA impact the new NYS Paid Sick Leave for COVID-19? If an employer has fewer than 500 employees, the provisions of the NYS Paid Sick Leave for COVID-19 will apply if the NYS benefits exceed those provided by FFCRA. In that case, the employee can claim the monetary difference between the NYS and federal benefits. An employer can require the employee to use FFCRA and NYS Paid Sick Leave for COVID-19 benefits concurrently.
What if an employer is located in NYC or an employee works in NYC, does the employee get the benefit of both the state and city COVID-19 sick leave provisions? Yes, if the employee is eligible for both. In fact, the city and state benefits will run consecutively. Eligible employees will receive the minimum amount of paid or unpaid leave set forth in the NYC Paid Safe and Sick Leave Law, plus any paid leave the employee is entitled to under the NYS Paid Sick Leave for COVID-19. Also, the employee may be able to access the two unpaid days afforded by the NYC Temporary Schedule Change Law, which are in addition to the NYC Paid Safe and Sick Leave Law.
What are a NYS employee’s options where a family member is sick with COVID-19? The NYS COVID-19 legislation expanded the definition of a “serious health condition” under NYS Paid Family Leave to include those suffering from COVID-19. An employee can now apply for NYS Paid Family Leave to care for a family member with a serious health condition if a licensed health care provider certifies that the request for leave is justified. That certification is included in the application package, which can be accessed here. In this instance, an order of quarantine or isolation is not required, as compared to the application for NYS Paid Sick Leave for COVID-19, which requires such an order. NYS guidance states that “family members” include an employee’s spouse, domestic partner (whether the same or different gender), child/stepchild and anyone which the employee has legal custody of, parent/stepparent, parent-in-law, grandparent or grandchild.
Can a NYS employee receive both disability and paid NYS Paid Family Leave after his NYS Paid Sick Leave for his COVID-19 expires? Yes, if the employee remains under a mandatory or precautionary order of quarantine. For an employee who works for a small (as defined above) employer who made less than $1 million dollars, he can apply for NYS Paid Family Leave, which pays a maximum of 60% of his pay, up to a maximum weekly benefit of $840.70. This employee can apply for benefits as soon as he is under an order of quarantine since he is only guaranteed unpaid job-protected leave for the duration of the quarantine. After receiving NYS Paid Family Leave, the employee will receive disability benefits to match his full wages, up to $2,043.92, with this combined benefit totaling $2,884.62 per week. For an employee who works for a small (defined above) employer who made more than $1 million dollars or a medium (defined above) sized employer, the employee must first take the 5 days of paid sick leave he is entitled to under the NYS Paid Sick Leave for COVID-19. Assuming the employee is under a mandatory or precautionary order of quarantine for 14 days, the additional 9 days of quarantine will be covered with a combination of NYS Paid Family Leave and disability benefits for the same amount described above for small employers who made less than $1 million dollars. For an employee who works for a large (defined above) employer, the NYS guidance suggests that the 14 days of paid leave to which the employee is entitled under the NYS Paid Sick Leave for COVID-19 should cover the full time period of the quarantine.
How does an employee obtain an order of quarantine? NYS guidance recommends contacting your local health department to obtain an order of quarantine or isolation. A list of NYS local health departments can be found here. As local health departments have implemented their own procedures for obtaining an order of quarantine or isolation, local representatives will be able to guide employees to the specific forms required to obtain such an order. For example, Suffolk County currently has online forms which can be auto-generated. We have been advised that official NYS orders of quarantine from the NYS Department of Health may take up to 30 days to receive. NYS guidance does further suggest that if unable to immediately obtain an order of quarantine or isolation, an employee should submit documentation from his healthcare provider that he or his minor dependent child have been treated and that he or his child qualify for the order. This documentation can then be submitted along with the necessary application (explained below) to the employer’s insurance carrier during the time period the employee is waiting for the order of quarantine or isolation.
How does an employee apply for NYS Paid Family Leave/disability benefits? A NYS employee, after he exhausts NYS Paid Sick Leave for COVID-19, can notify his employer of his intent to seek these benefits and submit a Request for COVID-19 Quarantine Leave form to his employer. After the employer and employee have completed their sections of the form, the employee must submit it, along with the quarantine order, to his employer’s disability and Paid Family Leave insurance carrier within 30 days after the start of the leave. Employees can search their employer’s insurance carrier here. Guidance received from the State indicates that applications for NYS Paid Family leave and/or disability benefits are being handled at the discretion of the employer’s insurance carrier or claims-file manager, which has the ability to deny or approve the claim and set the amount of time the employee can take. The guidance we received also indicates that the carriers have shown wide discretion in how these claims are treated.
In light of COVID-19, if an employer terminates an employee, should the employer include any language in the termination letter regarding the reason for the employee’s termination? Anecdotal evidence suggests that an employee’s application for unemployment insurance will be more easily processed if the termination or furlough letter specifically states that the termination is due to a COVID-19 related reason, such as a lack of business, no available work for the employee to perform, or closure of the business for economic reasons.
As guidance surrounding each of the above COVID-19 leave laws continues to evolve on a daily basis, employers and employees are encouraged to speak with counsel regarding their rights and responsibilities during these unprecedented times.
 Under NYS law, the following providers meet the definition of a Licensed Health Care Provider: Physician, Physician Assistant, Chiropractor, Dentist, Physical Therapist, Nurse Practitioner, Registered Professional Nurse, Podiatrist, Optometrist, Psychologist, Clinical Social Worker, Occupational Therapist, Midwife, Mental Health Practitioner, Speech-language Pathologists and Audiologists.