2020-03-19
As a follow-up to our article yesterday, both the Federal Families First Coronavirus Response Act and the New York State Paid Leave Bill have been signed into law.
The Federal law is effective on April 2, 2020 and we will provide much more information on those requirements in the near future as additional guidance becomes available.
The New York law is effective immediately, so this article will focus on what you need to know right now.
ALERT: New York Executive Order – Businesses must decrease in-office workforce by 75%
New York Paid Sick Leave Benefits Law
Who does it apply to?
Any employer that has one or more employees working in New York State.
What is considered a qualifying event?
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 governmental entity duly authorized to issue such an order due to COVID-19.
Does an executive order to reduce your in-office workforce count as a qualifying event?
Unfortunately, this is not clear, but it seems unlikely that it would apply to this law unless the order specifically required that your employees remain quarantined or isolated.
What about employees that aren’t sick and can work?
Employees that are asymptomatic or have not yet been diagnosed with a medical condition and are physically able to work remotely or through other means while under mandatory quarantine or isolation are not eligible to take the sick leave.
What benefits do you have to provide?
This depends on a combination of the number of employees you have and your total net income in the previous tax year.
Employers with 10 or fewer employees and a net income less than $1 million.
- Provide job protection for the duration of the quarantine order.
- Guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million.
- Provide at least 5 days of paid sick leave.
- Provide job protection for the duration of the quarantine order.
- Guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
Employers with 100 or more employees, as well as all public employers (regardless of number of employees)
- Provide at least 14 days of paid sick leave.
- Guarantee job protection for the duration of the quarantine order.
Are all employees included or does it only apply to full-time?
The bill doesn’t differentiate between full or part time status. Without additional guidance, it would seem that all employees are eligible.
What’s considered a day of sick leave?
The language in the bill doesn’t help us much here either. Generally, the rule of thumb is to consider a day equal to the average number of hours the employee typically works. For most full-time employees, this is 8 hours. For part-time employees, a six-month look-back will probably be a safe approach to make sure the amount paid is accurate and justifiable.
Can you make employees use their existing time off?
No, unless the employee was subject to quarantine or isolation as a result of non-business travel to a country identified as a level 2 or 3 risk by the CDC.
What does job protection mean?
The employee must be restored to his or her position held prior to any leave taken under this law at the same pay and terms and conditions of employment. You cannot threaten, penalize, retaliate or discharge the employee because the employee took the leave.
How does Paid Family Leave and Disability insurance provide wage replacement?
Disability Insurance would apply when:
- The employee is unable to perform his or her regular duties as a result of a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such an order due to COVID-19; and
- When the employee has used up all paid sick leave provided by company under this bill.
Paid Family Leave Insurance would apply when:
- Any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such an order due to COVID-19; or
- To provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such an order due to COVID-19.
What about employees that have already been laid off?
This is a tricky one and we highly recommend contacting a qualified labor attorney to provide guidance based on your unique situation. At face value, employees that were terminated prior to enactment of this law with no guarantee of future employment are no longer employees and therefore not eligible for these benefits. However, there is no clear guidance available to employers specific to the large volume of employees being laid off at this time and we urge caution before making a decision to terminate employees without legal guidance.
Are there ongoing Paid Leave Requirements, or is this temporary?
The original bill included a section requiring employers to provide paid sick leave each year, but that portion of the bill was removed before it was signed.
Are there any tax credits available to cover the employer cost of these paid sick leave benefits?
No, there no New York State tax credits to offset these costs. However, qualified sick leave hours under the New York bill can be applied against qualified sick leave hours paid under the Federal bill when it goes into effect. Under the Federal bill, these wages can be claimed as a credit against the employer-portion of Social Security Tax.
Legal Disclaimer: CheckWise Payroll LLC is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. CheckWise Payroll LLC cannot be held legally accountable for actions related to its receipt.
©2020 CheckWise Payroll LLC
