We have been fielding calls every day from employers who are struggling to determine their obligations under New York’s new emergency paid sick leave law and the federal Families First Coronavirus Response Act (FFCRA). The aim of this post is to provide the simplest explanation of the circumstances in which these laws do and do not overlap.
Although the New York law and the FFCRA both provide for paid emergency sick leave, the New York law only provides for paid emergency sick leave in one limited situation. In contrast, the portion of the FFCRA known as the Emergency Paid Sick Leave Act (EPSLA) provides for paid emergency sick leave in six different situations.
If an employee requires paid emergency sick leave in one of the following five situations, New York employers with less than 500 employees need only comply with EPSLA. (Note, however, that in the case of number (3) below, an employee might be entitled to benefits under the New York Paid Family Leave Benefits Law, depending on the circumstances). Specifically, an employee, regardless of the duration of his or her employment, is entitled to paid emergency sick leave under EPSLA when he or she is unable to work (or work remotely) and:
- has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19;
- has symptoms of COVID-19 and is seeking a diagnosis;
- is caring for a person who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19;
- is caring for a son or daughter if the child’s school or place of care has been closed, or his or her child care provider is unavailable, due to COVID-19 precautions; or
- is experiencing any other substantially similar health condition as specified by the Secretary of Health and Human Services. This leave is available to all employees regardless of the duration of their employment.
The specific benefits that an employer must provide in these scenarios were the subject of one of my previous blog posts last week.
An employer’s obligations are more complicated in the one situation in which the New York paid emergency sick leave law and EPSLA overlap. Both laws provide for paid emergency sick leave where an employee is unable to work (or work remotely) and is subject to a government order of mandatory or precautionary quarantine or isolation related to COVID-19.
The New York law specifically addresses what would happen if a federal law was passed. It states that, in such an event, employees are not entitled to paid leave under New York law unless New York law provides employees with greater benefits than the federal law does. In that case, the employee must collect benefits under federal law, and can also collect the difference between the New York law benefit and the federal law benefit, either directly from the employer or through New York disability and paid family leave benefits, as the case may be.
What does that mean exactly? It depends on the size of the employer and, in some cases, the amount of net income the employer reported on the prior year’s tax return. Note that New York law imposes different requirements on employers depending on their number of employees as of January 1, 2020, while EPSLA requires all employers with less than five hundred employees on the date an employee takes leave to provide the same benefits.
For employers that had ten employees or less on January 1, 2020, and reported net income of less than $1 million on the prior year’s tax return:
- Under EPSLA, an employee is entitled to up to eighty hours of paid emergency sick leave (for full-time employees) at the employee’s regular rate of pay, capped at $511 per day and $5,110 for the entire period of leave.
- If the employee’s regular rate of pay is more than $511 per day, then the employee is also entitled to collect an amount that is equal to the difference between the maximum benefit available under federal law, and the maximum benefit available under New York law in combined New York disability and paid family leave benefits (the maximum combined amount of these New York benefits is $2,884.62 per week).
- After the exhaustion of benefits under EPSLA, the employee is entitled to collect combined New York disability and paid family leave benefits for the remainder of the duration of the government’s quarantine or isolation order, at the employee’s regular rate of pay, capped at the maximum combined benefit amount of $2,884.62 per week.
For employers that had ten employees or less on January 1, 2020 and reported net income of more than $1 million on the prior year’s tax return, and employers with 11-99 employees as of January 1, 2020 (regardless of the amount of the prior year’s net income):
- Under EPSLA, an employee is entitled to up to eighty hours (for full-time employees) of paid emergency sick leave at the employee’s regular rate of pay, capped at $511 per day and $5,110 for the entire period of leave. But, if the employee’s regular rate of pay is more than $511 per day:
- For the first five days of leave, the employee is also entitled to collect from the employer an amount that is equal to the difference between the maximum benefit available under federal law, and the employee’s regular rate of pay (uncapped).
- For the next five days of leave, the employee is also entitled to collect an amount that is equal to the difference between the maximum benefit available under federal law, and the maximum benefit available under New York law in combined New York disability and paid family leave benefits (the maximum combined amount of these New York benefits is $2,884.62 per week).
- After the exhaustion of benefits under EPSLA, the employee is entitled to collect combined New York disability and paid family leave benefits for the remainder of the duration of the government’s quarantine or isolation order, at the employee’s regular rate of pay, capped at the maximum combined benefit amount of $2,884.62 per week.
For employers that had one hundred employees or more on January 1, 2020 (regardless of the amount of the prior year’s net income):
- Under EPSLA (so long as the employer has less than 500 employees), an employee is entitled to up to eighty hours (for full-time employees) of paid emergency sick leave at the employee’s regular rate of pay, capped at $511 per day and $5,110 for the entire period of leave.
- If the employee’s regular rate of pay is more than $511 per day, then the employee is also entitled to collect from the employer an amount that is equal to the difference between the maximum benefit available under federal law, and the employee’s regular rate of pay (uncapped), for the entire period of EPSLA leave.
- If an employer has less than five hundred employees, EPSLA does not apply and the employer must simply provide fourteen calendar days of paid leave at the employee’s regular rate under New York law.
- Notably, the law is silent on the right of employees in this situation to collect any disability or paid family leave benefits at any point in time.
If this is not confusing enough, there are limited situations where, even though an employee cannot work remotely and is subject to a government order of quarantine or isolation, EPSLA might apply while New York law does not, or New York law might apply while EPSLA does not. Specifically, if an employer has more than 500 employees, EPSLA does not apply and the employer need only provide emergency paid leave under New York law. Or, if the employee is subject to a government order of quarantine or isolation because he or she has returned from travel to a country that is subject to a level 2 or level 3 health notice issued by the Centers of Disease Control and Prevention (subject to certain exceptions), paid emergency sick leave benefits are not available under New York law even though the employee is still entitled to EPSLA benefits.
Becoming fully familiar with employer obligations in this new and rapidly developing area of the law is no easy task. If you need assistance, contact me at jbaquet@jaspanllp.com