Understanding Paid Sick Leave and Family Leave in New York Following the Enactment of Families First Coronavirus Response Act

Christopher Cody Wilcoxson, Anthony A. Mingione, and Mark Blondman

On Wednesday, March 18, 2020, Governor Cuomo signed Senate Bill 8091 (the “NY Act”) providing coronavirus COVID-19 relief for affected employees. Blank Rome’s Coronavirus Task Force covered the immediate enactment on our Blank Rome Workplace Blog. The NY Act provides sick leave and benefits that are in excess of those provided by the Families First Coronavirus Response Act (“FFCRA”), which President Donald Trump signed into law on the same day. Blank Rome’s Coronavirus Task Force detailed the FFCRA when it was enacted; and provided updated guidance on March 25, 2020.

Employers in New York are required to comply with both the NY Act and the FFCRA and must determine whether any benefits in excess of those provided by FFCRA are required. This update summarizes several of the key differences between the New York and federal benefits.

What Employers Are Covered?

NY ACT: All employers are subject to the NY Act; however, benefits vary based on the size and net income of the employer.

FFCRA: Only businesses with fewer than 500 employees within the United States are subject to the FFCRA.

Who Is Eligible for Benefits?

NY ACT: All employees “subject to a mandatory or precautionary quarantine or isolation order issued by the state of New York, the Department of Health, the local board of health, or any governmental entity duly authorized to make such an order due to COVID-19.”

FFCRA: All employees that take leave:

        1. Due to employee being subject to an isolation order or self-quarantine advisement or if the employee is experiencing symptoms and seeking a diagnosis;
        2. Due to caring for an individual who is subject to an isolation order, advised to self-quarantine, or if the employee herself is experiencing any other substantially similar condition; and
        3. Due to caring for a child whose school or place of care is closed (or childcare provider is unavailable).

How Much Paid Sick Leave Is Provided?

NY ACT: The amount of paid sick leave is scaled by the size and net income of the employer:

        • One hundred or more employees: A minimum of 14 days of paid sick leave.
        • Between 11 and 99 employees: A minimum of five days of paid sick leave, followed by access to short-term disability benefits and paid family leave* for the quarantine order.
        • Ten or fewer employees and more than one million dollars in net income: A minimum of five days of paid sick leave, followed by access to short-term disability benefits and paid family leave* for the quarantine order.
        • Ten or fewer employees and less than one million dollars in net income: No obligation for paid leave but must provide access to short-term disability benefits and paid family leave* for the quarantine order.

* The NY Act permits use of New York Paid Family Leave for employees who are subject to a mandatory or precautionary quarantine or isolation order.

FFCRA: Employers with fewer than 500 employees must provide paid sick leave for up to 80 hours, based on the average number of hours that such employee works in a two-week period (80 for full-time employees).

What Is the Rate of Pay for Sick Leave ?

NY ACT: Employees are entitled to their full, normal rate of pay they would have otherwise received had they been continuing to work for that period based upon the amount that the employee was scheduled or would have been scheduled had the employer’s operations continued in its normal due course. Employees who work a fixed schedule or are paid a salary should simply continue to receive pay for the applicable period. For hourly, part-time, commissions salespeople, and other employees who are not paid a fixed wage, employers will have to determine the employee’s pay by looking at a representative period of time to set the employee’s average daily pay rate.

FFCRA: The employee is entitled to the greater of: employee’s normal rate of pay, the applicable federal minimum wage, or the applicable state or local minimum wage, with the caveat that the benefit is capped at $511 per eight-hour day or $5,110 total over 80 hours.

What Is the Rate of Pay for Family Leave?

NY ACT: After using the paid sick leave provided under the Act, employees may be eligible for compensation for the remainder of their quarantine by applying for state paid family leave and disability benefits. If eligible, employees are entitled to 60 percent of their average weekly wage, with a maximum benefit of $840.70 in paid family leave and a maximum weekly allowance of $2,043.92 in emergency temporary disability benefits per week.

FFCRA: The rate of pay is dependent on the reason for taking the leave:

        • Paid Sick Leave Portion: Employees taking leave to care for an individual who is subject to an isolation order, advised to self-quarantine, or if the employee herself is experiencing any other substantially similar condition, as specified by the Secretary of Health and Human Services, the employee is entitled to 80 hours of pay at two-thirds of the greater of: their regular rate of pay, the applicable federal minimum wage, or the applicable state or local minimum wage, with the caveat that the benefit is capped at $200 per day or $2,000 total.
        • Expanded Family Leave: Employees taking leave to care for a child whose school or place of care is closed (or childcare provider is unavailable), the employee is eligible for up to 12 weeks of leave, the first 10 days of which are unpaid. The last 10 weeks require partial payment. For the last 10 weeks of this expanded family and medical leave, an employee is entitled to two-thirds of the greater of: their regular rate of pay, the applicable federal minimum wage, or the applicable state or local minimum wage, with the caveat that the benefit is capped at $200 per day or $10,000 total over the entire 10-week period. Of course, the employee can use the 80 hours of paid sick leave above during the first two weeks of this expanded family and medical leave period.

How Is an Employee’s Regular Rate of Pay Calculated?

NY ACT: Average weekly wage for paid family leave is calculated as the higher of the last eight weeks worked including the week when paid family leave started, or the last eight weeks worked not including the week paid family leave started.

FFCRA: The regular rate of pay is the average of the employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave. This regular rate includes overtime, commissions, tips, or piece rates.

Key Takeaways

While the NY Act is effective and all employers in the State are covered, it is limited both in the scope of reasons for which leave can be taken and in the duration for which benefits are available. The FFCRA, in contrast, applies to many more employees and provides benefits over a longer period.

For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.

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