Client Alert: Update for employers regarding New York paid sick leave due to Coronavirus

As promised, we’re sending out updates on developments in the law that might impact you.

First, what’s happening with Families First Coronavirus Response Act?

As discussed in our initial email, the House approved the Families First Coronavirus Response Act and we’re still waiting to see what the Senate will do. So far, the Senate has yet to vote on the bill but it’s expected to pass a pared down version of the bill later this week. Most notably, the revised bill contains caps on the amount of paid leave employees can receive.

What else is happening?

Earlier today, New York’s Governor Cuomo announced a bill that would (1) provide immediate paid sick leave for employees of New York companies who are impacted by Coronavirus and (2) roll out an official State paid sick leave later this year.

Who does this apply to?

The short answer is: all New York employers and their employees (even if they live outside of New York). However, the type and amount of leave will vary depending on employer size.

What do employees get?

Let’s break this down into Coronavirus-related leave and statewide paid sick leave.

For Coronavirus-related leave:

For employers with 11-99 employees (and employers with 10 or fewer employees and a net income greater than $1 million), employees would be eligible for 5 days of paid sick leave.

For employers with 100 or more employees, employees would be eligible for 14 days of paid sick leave.

Less than 10 employees? Employers must offer job protection during the leave period.

This leave is only for employees who are taking leave due to a “mandatory or precautionary order of quarantine or isolation” by way of an order issued by a government entity. Employees are not entitled to leave if they are asymptomatic or have not yet been diagnosed.

For standard statewide paid sick leave:

For employers with 5-99 employees (and employers with 4 or fewer employees and a net income greater than $1 million), employees will be eligible for 40 hours of paid sick leave.

For employers with 100 or more employees, employees will be eligible for 56 hours of paid sick leave.

Less than 4 employees and net income less than $1 million? Employers must offer 40 hours of unpaid sick leave.

This should look familiar for those of you already subject to New York City’s version:

Employees will accrue sick leave at a rate of 1 hour for every 30 hours worked (beginning at the commencement of employment or effective date of new law, whichever is later). Sick leave can only be used for the following purposes: (i) care, treatment, or diagnosis for the employee or a family member with a mental or physical illness, injury, or health condition; (ii) absence due to, or to avail the services of (either themselves or a family member), domestic violence, sexual offense, stalking, human trafficking, or related matters, including meeting with an attorney regarding same. Employees are permitted to carry over up to their maximum accrual amount (i.e., 40 or 56 hours) to the following calendar year, but employers are permitted to have forfeiture clauses for unused time upon termination of employment. Strong anti-discrimination and retaliation provisions.

Statewide paid sick leave is set to go into effect 180 days following the bill’s approval.

So, how does this factor in with the federal bill?

It’s a great question – although neither bill provides a clear answer. With that said, considering the federal bill includes language specifically prohibiting employers from altering existing policies – and, since the New York bill is now an existing policy – the safest interpretation is that the federal bill supplements the state bill. More good news for employees. More costs for employers.

Please continue to stay tuned. We hope to know more on the federal bill this week and will continue to monitor all developments. In the meantime, please don’t hesitate to contact us if you have any questions. And as always, stay safe.

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