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New York has just passed major COVID-19 employment laws!

COVID-19 has caused bars, bodegas, and other businesses to shutter in New York City and throughout the state. The New York Legislature and Governor Andrew Cuomo have responded with several new laws designed to reduce the impact of these closures on workers in New York by providing additional paid and unpaid leave and benefits. Governor Cuomo has also signed an executive order requiring employers to limit the number of people working in the office.

Temporary Paid and Unpaid Leave Benefits

Governor Cuomo just signed a law providing temporary paid and unpaid leave benefits to workers impacted by COVID-19. Here are the key provisions of the law:

Effective Date March 18, 2020
Paid and Unpaid Leave Benefits (Dependent on Employer Size and Net Income) Employers with 10 or fewer employees and an annual net income of less than $1 million must provide unpaid sick leave for the duration of any government quarantine order. Employees are eligible for paid family leave benefits (capped at $840.70 per week) and short-term disability benefits (capped at $2,043.92 per week) during the quarantine period.

Employers with 10 or fewer employees with an annual net income of more than $1 million and employers with 11-99 employees must provide five days of paid sick leave then unpaid sick leave for the duration of any government quarantine order. After exhaustion of the paid leave, employees are also eligible for paid family leave benefits (capped at $840.70 per week) and short-term disability benefits (capped at $2,043.92 per week) during the quarantine period.

Employers with 100 or more employees and public employers must provide 14 days of paid sick leave then unpaid sick leave for the duration of any government quarantine order.

Accrued Sick Leave

Employers must provide COVID-19 leave “without loss of an … employee’s accrued sick leave.” Thus, COVID-19 leave is in addition to the employee’s accrued but unused sick leave.

Restoration to Same Position, Same Pay, and Same Terms of Employment

Upon return from COVID-19 leave, an employer must restore an employee to the same position they held prior to the leave with the same pay and other terms and conditions of employment.

Discrimination and Retaliation

Employers are prohibited from discriminating and retaliating against an employee for taking COVID-19 leave.

Expansion of the Definition of “Disability”

The definition of “disability” includes any inability of an employee to perform his or her regular duties because of any government quarantine order, “when the employee has exhausted all paid sick leave provided by the … employer under this act.”

Expansion of the Definition of “Family Leave”

The definition of “family leave” includes any leave taken by an employee when an employee is subject to any government quarantine order or to provide care for a minor dependent child who is subject to any government quarantine order.

Interaction with Federal Law

Employees will only receive state benefits to the extent those benefits exceed the benefits under any applicable federal laws.

Exemption

Employers do not have to provide temporary benefits to an employee who is asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under government quarantine order, whether through remote access or similar means.

Employers also do not have to provide paid sick leave to individuals who voluntarily traveled to countries for which a Level Two or Three travel health notice exists, if the employee was provided notice of the travel health notice and the provisions of this act.


Potential Permanent Paid and Unpaid Leave Benefits

In addition to leave and benefits related to the COVID-19 pandemic, Governor Cuomo and the New York Legislature also discussed providing permanent paid and unpaid leave benefits to workers after the pandemic is over. These permanent benefits were included in the original draft of the COVID-19 legislation, however, upon information and belief, they were omitted from the bill that Governor Cuomo signed on March 18, 2020. This subject will likely be revisited before the New York Legislature’s budget deadline on April 1, 2020.

Unemployment Insurance

Employees who are not working due to COVID-19 closures or quarantines may also be entitled to unemployment insurance.  The state recently announced that it has waived the traditional seven-day waiting period, which means that there is now no delay between the date of unemployment and date of receipt of unemployment insurance benefits.

Workplace Reduction

On March 18, 2020, Governor Cuomo issued Executive Order No. 202.6 that requires all non-essential businesses to implement work-from-home policies and reduce their in-office workforce by 50 percent no later than 8 p.m. on March 20, 2020. Essential businesses include healthcare providers, utilities, airports, shipping, media, warehousing, grocery and food production, pharmacies, and banks and related financial institutions are exempt from this requirement.

On March 19, 2020, Governor Cuomo has announced that employers must reduce their in-office workforce by 75 percent rather than 50 percent. The governor has not yet issued an executive order regarding this change, however.

Other Existing Laws

Finally, do not forget about the existing state and city employment laws, which are still in effect during the COVID-19 crisis. Those laws include New York City’s Paid Safe and Sick Leave Law, New York State’s Paid Family Leave Law, and New York State’s Mini-WARN Act.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.

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