Governor Andrew Cuomo Announces Agreement to Provide Paid Leave For Employees Quarantined By Government Order as a Result of COVID-19

UPDATE: On March 18, 2020, Governor Cuomo signed into law the COVID-19 Sick Leave portion of this bill. This new law provides paid leave for employees who have been quarantined by a government issued order as a result of COVID-19, and will take effect immediately. The remaining portion of the prior bill (Statewide Paid Sick and Safe Time Law), which addressed non-emergency sick and safe leave, will be addressed by the legislature at a later time.

March 18, 2020

On March 17, 2020, Governor Andrew M. Cuomo announced an agreement with the New York State Legislature on a bill that will provide job-protected paid leave for New York employees who have been quarantined by a government-issued order as a result of COVID-19. These protections will take effect immediately, upon the enactment of the law. This bill also sets forth a general statewide New York sick and safe leave law that will take effect within 180 days of the law’s enactment.

COVID-19 Sick Leave

Under this proposed law, an employee of a private employer is eligible for the following leave if the employee is subject to a mandatory or precautionary government order[1] of quarantine or isolation due to COVID-19:

Employer Size (As of January 1, 2020)	Sick Leave
Employers with 10 or fewer employees, with a net income of less than $1 million	Employers must provide unpaid sick leave until the termination of any mandatory or precautionary government order of quarantine or isolation due to COVID-19. Employees may also access expanded disability and NY Paid Family Leave benefits (see below).
Employers with 11-99 employees; and Employers with 10 or fewer employees, with a net income of greater than $1 million	Employers must provide 5 paid sick days, and then unpaid leave until the termination of any mandatory or precautionary government order of quarantine or isolation due to COVID-19. Employees may also access expanded disability and NY Paid Family Leave benefits (see below).
Employers with 100 or more employees	Employers must provide 14 paid sick days during any mandatory or precautionary government order of quarantine or isolation due to COVID-19.

This proposed law only provides leave where an employee is subject to a government-issued order of quarantine or isolation. In its current form, the law does not provide leave when an employer has voluntarily closed a place of work or where an employee is unable to report to work because of a school closure.

Expanded Disability and NY Paid Family Leave Act Benefits During COVID-19 Quarantine

This law also expands, effective immediately, the definitions of disability and family leave under the state’s short-term disability and Paid Family Leave (PFL) law to provide benefits for individuals who are unable to work as a result of a mandatory or precautionary government order of quarantine or isolation due to COVID-19, and who are not receiving paid sick leave (described above).

Disability is defined as any inability of an employee to perform the regular duties of the employee’s job or the duties of any other job which the employer may offer (e.g., remote work) as a result of a mandatory or precautionary government order of quarantine or isolation due to COVID-19.
Family leave is defined as any leave from work taken by an employee: (a) when the employee is subject to a mandatory or precautionary government order of quarantine or isolation due to COVID-19, or (b) to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary government order of quarantine or isolation due to COVID-19.
Employees may obtain both disability and PFL benefits concurrently, without a waiting period. Such benefits, however, are capped at: (a) no more than $840.70/week in PFL benefits; and (b) $2,043.92/week in disability benefits.

Job Protection

This law also provides the following job protection benefits:

Upon return to work following leave taken pursuant to this law, an employee shall be restored to the position of employment held by the employee prior to the leave, with the same pay and other terms and conditions of employment.
No employer or agent of the employer, or the officer or agent of any corporation, partnership, limited liability company, or any other person, shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to this law.

Exceptions

Notably, an employee shall not receive paid sick leave benefits or any other paid benefits under this law if the employee is subject to a mandatory or precautionary order of quarantine because: (1) the employee has returned to the United States after traveling to a country for which the Centers for Disease Control and Prevention has issued a level two or three travel health notice; (2) travel to that country was not taken as part of the employee’s employment or at the direction of the employee’s employer; and (3) the employee was provided notice of the travel health notice and the limitations of receiving paid benefits under the law prior to such travel.[2] Such employees, however, shall be eligible to use accrued leave provided by the employer, or to the extent that such employee does not have accrued leave or sufficient accrued leave, unpaid sick leave shall be provided for the duration of the mandatory or precautionary quarantine or isolation.

Additionally, the employee who has undertaken such travel will not be eligible for benefits under the proposed law in cases where the employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.

Interaction With Collective Bargaining Agreements

This proposed law will not supersede the provisions of a collective bargaining agreement, as it provides that nothing in the law shall be deemed to impede, infringe, diminish or impair the rights of an employer under any law, rule, regulation or collectively negotiated agreement, or the rights and benefits which accrue to employees through collective bargaining agreements. Additionally, the law shall not otherwise diminish the integrity of the existing collective bargaining relationship, or prohibit any personnel action which otherwise would have been taken regardless of any request to use, or the utilization of, any leave provided by this law.

Interaction With Other Laws

This law provides that, if at any point while it is effective, the federal government, by law or regulation, provides sick leave and/or other employee benefits related to COVID-19, then the provisions of the New York law, including, but not limited to, paid sick leave, paid family leave, and benefits due to disability, shall not be available. If, however, the provisions of the New York law would have provided more benefits than the federal law, an employee will be entitled to such additional sick leave and/or employee benefits provided under the New York law in an amount that shall be the difference between the benefits available under the New York law and the benefits available under any federal law. For example, if the federal law provided 10 days of paid sick leave to employees working for employers with 100 or more employees, an employee in New York would be eligible for an additional 4 days of paid sick leave.

Statewide Paid Sick and Safe Time Law

This law also provides for general paid sick and safe time for New York employees, which will take effect 180 days from the law’s enactment. These provisions are similar to local sick leave laws (e.g., the New York City and Westchester County sick leave laws), but provide more leave for employees working for employers with 100 or more employees, which will require employers in those jurisdictions to revise their leave policies.

The proposed New York law provides for the following sick and safe time:

Employer Size (As of January 1, 2020)	Leave
Employers with 10 or fewer employees, with a net income of less than $1 million	40 hours of unpaid leave per calendar year
Employers with 11-99 employees; and Employers with 10 or fewer employees, with a net income of greater than $1 million	40 hours of paid leave per calendar year
Employers with 100 or more employees	56 hours of paid leave per calendar year

For purposes of determining the number of employees, a calendar year will be the twelve-month period from January 1 through December 31. For all other purposes (e.g., calculating available leave), a calendar year will mean either: (1) the twelve-month period from January 1 through December 31; or (2) a regular and consecutive twelve-month period, as determined by an employer.

Such leave may be taken, on or after January 1, 2021:

for a mental or physical illness, injury, or health condition of an employee or such employee’s family member, regardless of whether such illness, injury or health condition has been diagnosed or requires medical care at the time that such employee requests the leave;
for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or
“safe leave” for an absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, so that the such employee, or the employee’s family member, may obtain services or assistance (as set forth in the law).

Employees may accrue leave under the proposed law at the rate of one hour of paid leave for every 30 hours worked, or employers may “front load” such leave by providing the leave all at once at the beginning of the calendar year. If the accrual method is used, accrual will start at the commencement of employment or the effective date of the law, whichever is earlier.

Employees do not have to take a full day of leave, but employers may set a minimum increment for the use of such leave of not less than four hours. Leave accrued but unused in one year must be carried over to the following year, but employers may limit the use of leave to 40 or 56 hours per year (depending upon the size of the employer).

Employees do not have to be paid for accrued, unused leave upon a separation from employment.

Next Steps

This proposed law is likely to be signed soon, given the agreement announced by Governor Cuomo on March 17, 2020, with the Legislature.

Employers may therefore want to begin preparing to provide the paid leave benefits to employees impacted by COVID-19 government-ordered mandatory or precautionary quarantines, as required under this proposed law.
With respect to the portion of the law which sets forth a safe and sick leave law for New York employees generally, which will take effect within 180 days of the law’s enactment, it is likely that further guidance will be issued regarding this law prior to its effective date. Employers should review such guidance and ensure that their policies and practices comply with this law.

Please do not hesitate to contact any of our attorneys if you have any questions or would like additional information.

[1] The order can be issued by New York State, the State Department of Health, a local Board of Health, or any other government entity authorized to issue such an order.

[2] In anticipation of a situation where the employee does not inform an employer in advance of the employee’s travel plans, it may be helpful for employers to post the CDC’s travel health notices, along with the provisions of this proposed law, in the workplace (or in a manner that may be viewed by employees working remotely) to ensure that employees are aware of this restriction. It is likely that guidance may be issued after the law is passed which will further clarify this issue.