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Breaking News: Limitations on Receiving Sick Leave and Family Leave Under the FFCRA and New York State Senate Bill S8091

As noted in our previous Alert on March 19, 2020 concerning the bipartisan coronavirus relief bill, under the Families First Coronavirus Response Act (FFCRA) employers with 499 or fewer employees are responsible for providing employees with paid sick leave and paid expanded family and medical leave under certain circumstances related to the novel coronavirus (COVID-19).  

Bipartisan Coronavirus Relief Bill Alert

In our previous Alert on March 24, 2020 concerning the New York State Senate Bill S8091 (Senate 8091), that law requires employers to provide employees with sick leave, family leave, and disability leave in certain circumstances when an employee must stay home because they are unable to work, including remotely, due to COVID-19 and are subject to a mandatory or precautionary COVID-19 order of quarantine or isolation.

Now that the FFCRA and Senate 8091 are in effect, employers responsible for complying with both the FFCRA and Senate 8091 are attempting to assess the financial burden associated with their obligations to provide paid sick leave, family leave and disability leave pursuant to New York State and federal law.

The United States Department of Labor (USDOL) and the New York State Department of Labor (NYSDOL) have both released multiple rounds of guidance on how to interpret their respective leave statutes related to COVID-19. Based on the most recent guidance from the USDOL, issued on March 28, 2020, and the most recent guidance from the NYSDOL, issued on March 31, 2020, employees’ entitlement to receive paid sick leave and family leave under the FFCRA and Senate 8091 has been limited in three major respects.

Do Current Orders to Close Businesses and Schools Alone Qualify Employees for Paid Sick Leave and Family Leave

Under the FFCRA, employees are entitled to leave benefits if they are unable to work (including telework) and require leave from work because they are:

  1. Subject to Federal, State, or local quarantine or isolation order related to COVID-19; 
  2. Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 
  3. Experiencing symptoms of COVID-19 and are seeking medical diagnosis;
  4. Caring for an individual who is subject to a quarantine/isolation order or has been required to self-quarantine; OR
  5. Caring for a son or daughter because of school closure or unavailable child care related to COVID-19. 

Under Senate 8091, employees are entitled to sick leave benefits if they are unable to work (including telework) and, are subject to a mandatory or precautionary order of quarantine or isolation which has been issued by a duly authorized government entity, including the State or municipal governmental body, and/or a department of health duly authorized to issue such an order.

NYSDOL guidance suggests that the order needed to receive benefits under Senate 8091 requires either a formal mandatory or precautionary order of quarantine or isolation issued by a duly authorized governmental body, which covers a group of individuals or a mandatory or precautionary order of quarantine or isolation issued to an individual based on the individual’s personal circumstances related to COVID-19. Current orders issued by the federal, state, city and local governments to close businesses and/or schools as a preventative measure to reduce the spread of COVID-19 or promote social distancing do not satisfy the order requirements entitling employees to sick leave under Senate 8091. It is our understanding that the essential business orders and preventative business and school closing orders are sufficient to satisfy the order requirement entitling employees to sick leave under the FFCRA.

NYSDOL’s narrow reading of what qualifies as a sufficient order also limits an employees’ ability to receive family leave under Senate 8091.

Under the FFCRA, employees who have worked for their employer for at least 30 calendar days at the time of application are entitled to use up to ten weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay to certain cap levels of income if the employer has work for the employee to perform either at the employer’s facility or remotely, and the employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. A quarantine or isolation order is not required to determine an employee’s eligibility to request expanded paid family leave under the FFCRA.

Conversely, Senate 8091 does not provide employees with family leave to care for a child whose school or child care provider is closed or unavailable due to a COVID-19 related reason. Rather, New York employees who work for an employer who employs fewer than 100 employees may apply for up to ten weeks of family leave if the employer has work for the employee to perform either at the employer’s facility or remotely, and the employee is not physically able to perform work for the employer, including working remotely, because the employee is subject to a COVID-19 Order. Alternatively, employees who work for an employer who employs fewer than 100 employees may seek up to ten weeks of family leave under Senate 8091 if the employee must provide care to a minor dependent child who is subject to a COVID-19 Order. Employees who work for an employer who employs 100 or more employees are not entitled to expanded paid family leave and disability leave benefits under Senate 8091. They are only entitled to basic family leave and disability leave benefits under preexisting New York State law.

Without the particularized order contemplated by the NYSDOL, an employee will not be entitled to paid family leave under Senate 8091, and New York employees will likely look to obtain family leave benefits under the FFCRA.

While we believe that select New York counties have issued mandatory or precautionary orders of isolation or quarantine, we are not aware of any such order related to the New York City area, and the State has definitely not issued such an order. While the federal, state, city and most local governments have not issued the appropriate order which would entitle certain New York employees to paid sick leave and family leave under Senate 8091, NYSDOL has at least outlined the process an individual may follow to obtain an individual mandatory or precautionary order of quarantine or isolation based on the individual’s personal circumstances related to COVID-19.

An individual may obtain a mandatory or precautionary order of isolation or quarantine from any local health department by submitting documentation from a licensed medical provider that has treated the individual and attests that the individual qualifies to receive the order. Note that this does not mean just getting a doctor’s note.You have to follow the procedures discussed below and get an order from a local health department based on the information from a doctor.

Employees qualify to obtain the mandatory or precautionary order of isolation or quarantine if their medical care provider can attest to one of the following circumstances:

  1. An employee requires mandatory isolation because they a) tested positive for COVID-19 or have symptoms of COVID-19, AND b) have come into contact with a known COVID-19 case.
  2. An employee requires mandatory quarantine because they a) have been in close contact with someone who’s tested positive for COVID-19 or who is currently under mandatory isolation order, or because they b) have COVID-19 symptoms and have travelled within the last 14 days from a country with a level 2, 3 or 4 advisory for COVID-19.
  3. An employee requires precautionary quarantine because the employee a) is asymptomatic after returning to the United States within the past 14 days from a country designated with a level 2, 3 or 4 advisory for COVID-19 or 2) had proximate exposure to someone who tested positive for COVID-19 while that person had symptoms.

For New York State’s step by step guide to obtaining a mandatory or precautionary order of isolation or quarantine, click here.

For now, unless a governmental body issues or has issued an order of isolation or quarantine, only employees who are able to obtain the appropriate order from the local health department, and who are unable to work, including telework, after coming in contact with COVID-19, will be eligible to receive benefits under Senate 8091. Therefore, New York employers will likely see more employees who seek to obtain paid sick leave and family leave benefits pursuant to the FFCRA, as eligibility to obtain the federal benefits is much more relaxed than the eligibility requirements under Senate 8091.

So long as the federal government, New York State and New York City withhold the decision to issue a mandatory or precautionary order of isolation or quarantine covering New Yorkers as a whole, employers should expect only a small portion of its workforce to actually qualify for paid sick leave or family leave under Senate 8091 and the FFCRA. However, all employers should be developing a business contingency plan that addresses how it will respond should an authorized governmental body issue a mandatory or precautionary order of quarantine or isolation covering all New Yorkers.

Expansive Definitions Concerning Health Care Providers and Emergency Responders Limit the Number of Employees Eligible to Receive Federal and NYS Sick Leave and Family Leave

Under the FFCRA, employers who employ health care providers, emergency responders, and related health care support staff may elect to exclude application of the FFCRA to those employees. The USDOL has taken an expansive approach in defining who constitutes a health care provider or emergency responder subject to potential exclusion from eligibility to receive federal paid sick leave and family leave under the FFCRA.

Specifically, the USDOL defines “a healthcare provider” as any one at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instructions, medical school, local department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility performing laboratory testing, pharmacy, or those facilities that contract with the aforementioned institutions listed above who provide or maintain the operation of the above businesses, including those businesses who provide medical services, produce medical equipment, tests, drugs, vaccines, diagnostic tests or treatments, or those entities whom the highest official of a state deem a health care provider necessary for the state’s response to COVID-19.

Similarly, an emergency responder encompasses any employee who is necessary to provide transport, care, health care, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19, including but not limited to the military or national guard, law enforcement, officers, correction institution personnel, firefighters, emergency medical services, personnel, physicians, nurses, public health personnel, emergency medical technicians paramedics, emergency management personnel, 911 operators, public works personnel, or those equipped with the skill or training in operating special equipment or other skills needed to provide aid in a declared emergency or who provide work that is necessary to maintain the operation or facility.

The USDOL’s expansive approach to who qualifies as a health care provider or a first responder will have the effect of excluding even peripheral employees to the health and medical field community from eligibility to receive paid sick leave and emergency paid family leave under the FFCRA since it leaves the decision on whether to grant the leave solely to the employer’s discretion. Given the shortage of emergency responders, and the rapid increase in the number of people needing medical care as a result of the COVID-19 pandemic, employers will likely exercise the option to exclude employees from FFCRA coverage to attempt to best staff their workplaces to meet the demand for increased staffing because of the increase in patients.

Closing the Business Ends an Employer’s Sick Leave and Emergency Paid Family Leave Obligations Under FFCRA

Lastly, under the FFCRA, where an employer is required to close its business due to a lack of work or based on mandatory facility closings related to COVID-19 and does not engage in remote working, an employer is not required to continue to pay an employee’s paid sick leave and family leave beyond the last day the employer stops requiring or asking employees to perform services for the business. Therefore, employers responsible for complying with the FFCRA can elect to end business operations without concern for any existing financial obligations they may have related to employees who have taken leave pursuant to FFCRA.

While the current state of affairs may provide some solace to employers about their paid leave obligations under Senate 8091 and FFCRA, employers should be prepared to see a spike in paid sick leave and family leave requests if and/or when the federal government, State of New York and/or City of New York issues any mandatory or precautionary orders of quarantine or isolation covering all New Yorkers.

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