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New York State Passes Paid Quarantine Leave Law

n March 18, 2020, at Governor Andrew Cuomo’s behest, New York State passed an emergency law that extends paid leave and additional employment protections and benefits immediately to employees involuntarily quarantined in connection with COVID-19.

An initial version of the bill also included paid sick leave provisions that were not directly related to the COVID-19 pandemic and were scheduled to take effect January 1, 2021. Those provisions have been stricken from the emergency law but are expected to be passed in separate legislation.

Paid Quarantine Leave

Under the new law, employers are required to provide paid (with narrow exceptions) and protected sick leave to employees who are subject to mandatory or precautionary orders of quarantine or isolation due to COVID-19.

A qualifying quarantine under the law must be a mandatory or precautionary quarantine order issued by a government agency or board of health. The quarantine leave available to an employee will depend on the size and income of the employer, as follows:

  • For employers with 10 or fewer employees as of January 1, 2020, and net income of $1 million or less in the previous tax year, eligible employees will be entitled to unpaid leave until the quarantine order is lifted.
  • For employers with (i) 10 or fewer employees as of January 1, 2020, and net income of greater than $1 million in the previous tax year, or (ii) between 11 and 99 employees as of January 1, 2020, eligible employees will be entitled to 5 days of paid quarantine leave and unpaid leave thereafter until the quarantine order is lifted.
  • For employers with (i) 100 or more employees as of January 1, 2020, or (ii) public employers, eligible employees will be entitled to 14 days of paid leave.

Quarantine leave will be protected insofar as the law requires employees returning from such leave to be returned to the same position, pay, and terms and conditions of employment as prior to such leave. It is unclear from the law whether such protections would extend after an employee has exhausted his or her paid leave but remains subject to a mandatory or precautionary quarantine order.

Further, the new law provides that paid quarantine leave must be granted without any loss of an employee’s accrued sick leave benefits. It is unclear if the law’s reference to “accrued sick leave” in this context refers only to benefits mandated by law or also to benefits provided under an employer’s policy.

Paid Family Leave and Disability Benefits

The emergency law also expands entitlement to statutory New York State Paid Family Leave (PFL) and benefits under the Disability Benefits Law (DBL) during the period of mandatory quarantine or isolation.

Under the existing PFL regime, virtually all private employers in New York are required to provide paid family leave benefits to eligible employees by purchasing a PFL policy or electing to self-insure. PFL benefits are usually employee-funded and available only for time off needed to care for family members, not for an employee’s personal illness. DBL benefits, in contrast, are available only in the event of an employee’s leave due to personal injury or illness. The emergency law expands eligibility for those benefits and increases the amount of DBL benefits available, essentially tapping into those insurance funds and self-insured reserves to provide additional relief to employees affected by mandatory or precautionary quarantine orders.

Eligible employees of private employers with fewer than 100 employees will be entitled to PFL and enhanced DBL benefits for any days of a quarantine for which they are not entitled to receive paid quarantine leave. The law is silent on whether employees of employers with 100 or more employees may be eligible for such statutory benefits. Employees who are eligible for PFL and/or DBL benefits may begin collecting such benefits on their first day of quarantine leave, if not otherwise entitled to paid leave; the usual waiting period is eliminated for purposes of the emergency law.

Significantly, eligible quarantined employees are also entitled to collect PFL and DBL benefits concurrently (which is otherwise prohibited under current law), up to 100 percent of their average weekly wages for those earning up to $150,000 per year, subject to weekly limits of $840.70 (PFL) and $2,043.92 (DBL). The definition of “maximum weekly benefit” under the DBL is temporarily and significantly increased from $170.00 to $2,043.92 per week for this purpose.

Exceptions to Quarantine Leave and Statutory Benefits

The law contains two important carve-outs, for:

  • asymptomatic employees under quarantine who have the ability to continue working by remote access or otherwise are not eligible for benefits; and
  • employees who are quarantined due to voluntary travel to high-risk countries, as defined in the statute. Such employees are, however, entitled to unpaid sick leave and use of accrued benefits during the period of quarantine or isolation.

In addition, employers may not apply the law in a manner that diminishes rights under a collective bargaining agreement (CBA). In other words, if an employee is entitled to greater rights under a CBA, then the CBA controls with respect to such rights.

Finally, employees eligible for benefits under the federal Families First Coronavirus Response Act (FFCRA) will be entitled only to the difference—if any—between the federal benefits and the benefits that employees would have received as described above.

There are still many unknowns regarding the law’s quarantine leave provisions, which were hastily drafted. The New York State Department of Labor (NYSDOL) is authorized to promulgate emergency regulations and issue guidance under this legislation. We will be monitoring any actions by the NYSDOL and will provide further details as they become available.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 80
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About this Author

Patrick Collins, Ogletree Deakins Attorney, Labor and Employment Litigation Attorney
Shareholder

Mr. Collins represents employers in all aspects of labor and employment law and workplace related disputes. He has successfully litigated single- and multi-plaintiff disputes involving employment contracts and policies, restrictive covenants, employment discrimination, and wage and hour claims in both federal and state trial courts and argued successful appeals before federal and state appellate courts. He regularly defends employers in investigations by and hearings before federal and state departments of labor and human rights agencies.

A significant part of Mr. Collins’s practice...

212-492-2504
Aaron Warshaw, Ogletree Deakins Law Firm, Labor and Employment Attorney
Shareholder

Aaron Warshaw is an experienced, attorney who represents a diverse array of clients in labor and employment matters.  He is one of the founding attorneys of the New York City office.  Aaron’s first-chair experience includes representing Fortune 500 companies in single-plaintiff and class-action employment cases.  He has actively litigated and appeared in many jurisdictions throughout New York State, including before state courts, federal courts, appellate courts, and administrative agencies.  Aaron also is a trusted advisor for management in navigating federal, New York...

212-492-2509
Christina M. Schmid Labor & Employment Attorney Ogletree Deakins Law Firm
Associate

Ms. Schmid represents employers in all aspects of labor and employment law, including employment discrimination actions, contract disputes, wage and hour disputes, and other employment-related litigation before federal and state courts, state and local human rights agencies, and in arbitration proceedings.  She also regularly counsels employers regarding employment agreements, employment policies and handbooks, terminations, recent legal developments, and other related employment issues.

EXPERIENCE

  • Obtained...
212-492-2093
Daniel Bernstein Labor and Employment Attorney
Associate

Daniel Bernstein is a management-side labor and employment attorney, representing and counseling clients on a wide range of matters involving:

  • Federal and state wage and hour matters, including collective and class action defense

  • Title VII, Americans with Disabilities Act, Family and Medical Leave Act, Age Discrimination in Employment Act, and state and city Human Rights Law compliance and litigation

  • National Labor Relations Act

  • Contract drafting and review

  • Employee handbook drafting and review

    ...
212-492-2079
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