On March 18th, Governor Cuomo signed a bill intended to address employee sick leave, both in connection with the COVID-19 outbreak, and more generally. The bill took effect immediately.
SUMMARY OF BENEFITS
|Employer Size||Covid-19 Benefits (Effective Immediately)||Sick Leave Benefits (Effective 9/14/20)|
|4 or fewer employees and net profits of $1 million or less||Unpaid sick leave for the duration of the Quarantine Order ||40 hours of unpaid leave|
|5-99 employees or net profits of more than $1 million||5 days paid leave then unpaid sick leave for the duration of the Quarantine Order||40 hours of paid leave|
|100+ employees||14 days paid sick leave then unpaid sick leave for the duration of the Quarantine Order||56 hours of paid leave|
This bill guarantees paid or unpaid sick leave to employees subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York department of health, local board of health or any governmental entity duly authorized to issue such order due to COVID-19 (a “Quarantine Order"). Employees would be entitled to unpaid sick leave for the duration of the Quarantine Order. Such employees of employers who either had a net income of more than $1 million in the previous tax year or who employed 11 to 99 employees as of January 1, 2020 would be entitled to 5 days of paid sick leave during the duration of the Quarantine Order. Employees of companies who employed at least 100 employees as of January 1, 2020 would be entitled to 14 days of paid sick leave during the duration of the Quarantine Order.
Once employees have exhausted any paid sick leave available to them as a result of a Quarantine Order, they are eligible for paid family leave and disability benefits. These benefits are available on the first full day of the unpaid period caused by a Quarantine Order. For the purposes of benefits under this bill, the definition of “family leave" is amended to include leave taken because the employee is subject to a Quarantine Order or to care for a minor dependent child subject to a Quarantine Order. The definition of “disability" is amended to include an employee's inability to perform the regular duties of his or her employment, or other employment offered to him or her by his employer, as a result of a Quarantine Order.
There are three notable exceptions to the benefits provided by this portion of the bill. If the Federal Government adopts any law or regulation that provides similar benefits, that law will supersede the benefits provided by this bill, except to the extent that the benefits provided by this bill are more generous. The benefits provided by this bill do not apply where the employee is “deemed asymptomatic" or has not yet been diagnosed with a medical condition and is physically able to work while under the Quarantine Order. An employee is not entitled to receive any paid benefits where the Quarantine Order was put in place because the employee has returned to from traveling to a country for which the CDC has a level two or three travel health notice, where the travel was not part of the employee's employment and the employee had notice of both the health notice and this restriction on benefits.
In addition to providing sick leave in response to the COVID-19 outbreak, the bill also would set up a permanent sick leave regime. Employers who had a net income of $1 million or less during the prior calendar year and who employ 4 or fewer employees in a given calendar year must provide employees with 40 hours of unpaid sick leave. Employers with net profit of $1 million or more during the prior calendar year or who employed between 5 and 99 employees during a given calendar year must provide at least 40 hours of paid sick leave. Employers who employ at least 100 employees in a given calendar year must provide 56 hours of paid sick leave.
Starting January 1, 2021, employees with accrued sick leave may take that sick leave if they or a family member have a mental or physical illness, injury or health condition, to allow for the employee or employee's family member to have such a condition diagnosed, cared for or treated, or to allow for an absence due to the employee being a victim of domestic violence, a sexual offense, stalking or human trafficking or to permit the employee or a family member of the employee to obtain services relating to their being a victim of such crimes. An employee can request sick leave orally or in writing and an employer may not require the employee to disclose confidential information relating to the reason for that sick leave. The condition triggering sick leave need not have been diagnosed or require care to qualify for sick leave. An employer may take sick leave in any increment, but employers may set a reasonable minimum increment for the use of sick leave not exceeding 4 hours. Employees that take sick leave are entitled to compensation at the greater of his or her regular rate of pay or the applicable minimum wage.
Sick leave will accrue at a rate of 1 hour per 30 hours worked, calculated from the date of employment, or effective date of the law (180 days after passage of the bill), whichever is later. An employer may elect to provide its employees with the total amount of required sick leave at the beginning of a calendar year. If they do, the amount provided cannot be reduced due to the number of hours actually worked. Accrued sick leave rolls over each calendar year, but employers may limit the use of sick leave to 56 hours per year, or 40 hours per year if the employer employs 99 or fewer employees. Employees are not entitled to payment for unused sick leave.
Employers must maintain records of the sick leave provided to their employees for at least six years. Employees may request a summary of sick leave accrued and used in a current or previous year, and the employer must provide the employee with that summary within 3 days of the request.
Where an employer already provides employees with sick leave on terms that are at least as generous as provided by this bill, the bill will not require the employer to provide the employee with additional sick leave benefits. The bill permits New York City to enact or enforce local laws or ordinances which provide employers with more favorable benefits.
For the purposes of determining the number of employees employed during a “calendar year," “calendar year" means January 1 through December 31. Otherwise, an employer may choose a different twelve-month period to treat as a calendar year, so long as they continue to use that period going forward.
Employers may not take or threaten any adverse employment action against employees who take advantage of leave permitted under this bill, i.e. leave related to a Quarantine Order or regular sick leave. Upon returning to work, employers must be restored to the same position and on the same terms and conditions of employment as they held prior to taking leave.
One issue of particular note for insurance agencies and brokerages is that the mandates contained in the bill apply only to “employees." As many insurance producers are independent contractors, they may not be entitled to benefits under this bill or count towards the number of employees that are considered employed by an employer. However, whether a worker is an “employee" or an “independent contractor" can be a complicated question, which cannot always be resolved based solely upon how the worker is paid or the terms used by the employer and/or the worker in defining the relationship. Employers should consult an attorney if they have any question regarding whether a worker is an “employee" for the purposes of this bill.
Submitted by Walker Lewis, Esq., Keidel, Weldon & Cunningham
 The bill does not specify how an employee would be “deemed asymptomatic" or who is able to make this determination.