New York State has issued guidance in the form of Frequently Asked Questions (“FAQs”) regarding the State’s new COVID-19 Leave Law (the “Law”). As we have reported, the Law requires New York employers to provide certain employees who are under a COVID-19-related quarantine or isolation order with either paid or unpaid sick leave, depending on the employer’s size and net income. The FAQs provide answers to more than 30 questions regarding the Law’s mandates on benefits, eligibility, the application process, disputes, and the complaint process.
For example, the FAQs clarify that the leave periods under the Law refer to calendar days, not business days, but when granting paid leave, employers are required to pay the amount of money that the employee would have otherwise received during the five- or 14- day period. The FAQs also clarify that the Law applies to part-time employees, and that employers must provide such employees paid leave at the rate they would have otherwise been paid “had the employer’s operations continued in its normal due course.” If necessary, employers should look at a representative time period to determine the employee’s average daily pay rate. Notably, the FAQs clarify that the Law applies retroactively, that is, to employees who were quarantined prior to the Law’s effective date (March 18), but remain under a quarantine order
With respect to eligibility, the FAQs state that only employees who are under a mandatory or precautionary quarantine order, and are not able to work from home through remote access or other means, are eligible for leave under the Law. The FAQs also make clear that employees whose employer temporarily shuts down because of COVID-19 are not covered by the Law (but may be eligible for unemployment insurance, which they can apply for at the NYS Department of Labor website).
Regarding school closures, if the child’s school or care center is closed due to a mandatory or precautionary order of quarantine or isolation issued by the State, department of health, local board of health, or government entity, an employee may be eligible to apply for NY Paid Family Leave benefits (but will not be eligible for paid leave directly from an employer). The Law, however, does not provide eligibility for PFL benefits for school closures unrelated to a quarantine (e.g. for preventative social distancing), and the FAQs do not directly address whether the Governor’s order closing schools constitutes a “quarantine” order under the Law (and by its express terms, the Governor’s directive does not reference or seem to constitute such a quarantine order. While school closures are covered as eligible for leave under the federal FFCRA, absent a quarantine order, such closures do not entitle employees to paid leave from their employer under NY law.
The FAQs also address the Law’s interaction with other forms of paid leave to which an employee may be entitled. Specifically, the FAQs state that employers may not require employees to use their existing sick leave accruals or other accruals, such as paid time off, before taking COVID-19 leave under the Law. Further, employees may be eligible to take leave under the expanded Paid Family Leave provisions, and may also be entitled to disability leave if they are quarantined due to COVID-19, but only after exhausting the Law’s paid sick leave benefits (if they are eligible for such benefits).
Additionally, the FAQs provide detailed guidance on the types of forms and supporting documentation employees must provide when applying for leave benefits under the Law.
Finally, while the FAQs themselves do not address how employer’s size should be calculated for the purpose of determining how much leave employees are entitled to, an operator at the NY Paid Family Leave Hotline advised us that the employer’s size should be determined by counting an employer’s total number of employees, not just the employees working in New York.