January 19, 2021

Volume XI, Number 19

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January 18, 2021

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New York Sick Leave, Disability, and Paid Family Leave Benefits for Employees Quarantined Due To COVID-19

Today, new legislation was enacted in New York state to provide additional paid sick leave, as well as insurance benefits under paid family leave (“PFL”) and statutory disability (“DBL”) policies to employees subject to a mandatory or precautionary order of quarantine.

This legislation is limited to where there is 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 order due to COVID-19 (an “Order”). This legislation ensures that New York employees who are in receipt of such an Order will be able to receive a paycheck without having to charge their accrued sick leave. This legislation, however, does not extend additional benefits where the employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under an Order, whether through remote access or other similar means.

It is anticipated that the federal government will be passing federal legislation that may include financial support and provide benefits similar to, or superseding, those provided for in New York law. In addition, New York may issue an emergency regulation or additional guidance further clarifying this legislation.

Consideration will need to be given to such further developments, as well as how this and federal legislation relate to and what benefits apply to situations where employees are laid off either because a business is closed due to an executive order (i.e., restaurants, bars, gyms, schools) or because business is so diminished that the employer voluntarily closes, either temporarily or permanently.

Sick Leave Related to a COVID-19 Quarantine Order

In addition to previously accrued sick leave that an employer may extend to its employees, additional sick leave will be provided to employees subject to an Order:

Employers with 1-10 employees (under $1 million in net income) are not required to provide paid sick leave but shall provide unpaid sick leave until the termination of an Order. PFL and DBL are available.

Employers with 1-10 employees (over $1 million in net income) are required to provide five (5) days of paid sick leave, and shall provide unpaid sick leave until the termination of an Order. After five (5) days of paid leave, PFL and DBL are available.

Employers with 11 – 99 employees are required to provide five (5) days of paid sick leave and shall provide unpaid sick leave until the termination of an Order. After five (5) days of paid leave, PFL and DBL are available.

Employers with more than 100 employees and public employers are required to provide fourteen (14) days of paid sick leave. There are no changes to existing PFL and DBL benefits.

All Employers are required to return the employee to the position held before taking leave and are prohibited from discharging or discriminating against any employee taking leave.

Note Regarding Travel Outside the United States: There are exceptions that apply to paid sick leave benefits, if the employee has travelled to high risk areas outside of his or her employment.

Disability and Paid Family Leave Benefits Related to COVID-19

Additional benefits will be added to existing DBL and PFL insurance policies which employers should already have in place. For purposes of this act only:

Disability shall mean (1) any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment offered by his or her employer as a result of an Order AND (2) when the employee has exhausted all paid sick leave provided by the employer.

Family Leave shall mean (1) any leave taken by an employee from work when an employee is subject to an Order OR (2) to provide care for a minor dependent child of the employee who is subject to an Order.

No Waiting Period: Disability benefits are not subject to any statutory waiting period.

Concurrent Benefits and Benefit Caps: DBL and PFL benefits may be payable concurrently to eligible employees, and employees may collect benefits up to $840.70 in PFL and $2,043.92 in DBL per week.

Claim Documentation: A mandatory or precautionary order of quarantine or isolation issued by any governmental entity authorized to issue such order due to COVID-19 shall be sufficient proof of disability of PFL.

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©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 79
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Laura E. Evangelista Shareholder Government Law & Policy Insurance Insurance Regulatory & Transactions
Shareholder

Laura E. Evangelista focuses her practice on insurance regulatory matters. Laura previously served as Executive Deputy Superintendent at the New York State Department of Financial Services (DFS), where she led the Department’s insurance division, which regulates approximately 1,700 insurers with assets exceeding $4 trillion.

In her role at the DFS, Laura supervised all substantive insurance matters, including financial solvency examinations, market conduct examinations and insurance company acquisitions. She worked on policy initiatives, including formulation of regulations and...

212-801-9232
Michael J Murphy, Greenberg Traurig Law Firm, Albany, Government Contracts and Insurance Law Attorney
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With two decades of experience in life, property, causality, and workers compensation insurance matters, Michael J. Murphy is a skilled New York insurance legislative and regulatory attorney.

Michael has been involved in nearly every noteworthy insurance matter that has come before the New York State Legislature and the New York State Department of Financial Services, including most recently, ride sharing, paid family leave, and cybersecurity. Michael represents a number of national property casualty and life insurance carriers and, as a result...

518-689-1411
Eileen M. Hayes SHAREHOLDER Health Care & FDA Practice Insurance
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Eileen M. Hayes focuses her practice on health care and insurance regulatory matters. She advises clients on issues related to the New York marketplace, Medicaid, and managed care and insurance regulatory matters. Prior to joining the firm, she spent 20 years with the New York State Department of Financial Services’ (DFS) Health Bureau (formerly, the New York Insurance Department). There, she provided legal advice on all aspects of health insurance regulation, internally and to the governor’s office, the Division of the Budget, various state and federal agencies, legislators, insurers,...

518-689-1455
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