N.Y. Governor Announces Legislation Agreement to Protect Employees in State and Their Incomes Amid COVID-19 Uncertainty

On Tuesday, March 17, 2020, New York governor Andrew Cuomo announced that he and leaders of both houses of the state’s legislature have reached an agreement on a bill designed to provide job protection and various degrees of economic security to employees across the state who are impacted by COVID-19.

The New York State Senate has already passed a version of the Governor’s proposal. Although the proposed legislation has not yet been passed by the New York State Assembly, a vote could occur as soon as today, March 18. If the bill becomes law, it will provide job protection and some level of wage replacement for any employee who is subject to a qualifying order of mandatory or precautionary quarantine or isolation as an immediate measure designed to address the pending COVID-19 pandemic.

Job Protection and Partial Wage Replacement

The legislation attempts to protect employees’ jobs and income in the event of a mandatory or precautionary order of quarantine or isolation, and would take effect as soon as it is enacted. A “mandatory or precautionary order of quarantine or isolation” is defined as a mandatory or precautionary order of quarantine or isolation issued by the State of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.

Specifically, with January 1, 2020, being the operative date for calculating the number of individuals employed:

• Employers with 10 or fewer employees and a net income of less than $1 million must provide job protection for the duration of a quarantine/isolation order and guarantee such workers access to Paid Family Leave and short-term disability benefits for the period of quarantine/isolation;
• Employers with 10 or fewer employees and a net income greater than $1 million, must (i) provide at least five days of paid sick leave and, separately, job protection for the duration of the quarantine/isolation order; and (ii) guarantee that such workers are given access to Paid Family Leave and short-term disability benefits for the period of quarantine/isolation;
• Employers with 11-99 employees, and employers with 10 or fewer employees and a net income greater than $1 million, must (i) provide at least five days of paid sick leave and, separately, job protection for the duration of the quarantine/isolation order; and (ii) guarantee that such workers are given access to Paid Family Leave and short-term disability benefits for the period of quarantine/isolation; and
• Employers with 100 or more employees must provide (i) at least 14 days of paid sick leave and (ii) job protection for the duration of the quarantine/isolation order.

Significantly, the proposed legislation does not apply where an employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.

Although the Paid Family Leave Law generally prohibits the use of short-term disability leave concurrently with Paid Family Leave, for purposes of this legislation only, after exhausting paid sick leave, an employee may receive short-term disability concurrently with Paid Family Leave. Thus, between Paid Family Leave and short-term disability payments (both of which are funded by employee payroll deductions), an eligible employee may receive wage replacement of up to $2,884.62 per week (not to exceed the individual employee’s regular weekly wage).

Finally, for purposes of this proposed legislation only, New York Paid Family Leave may be used for one’s own health condition. Under the existing Paid Family Leave Law, eligible employees may not use Paid Family Leave for their own health condition.

The original version of the proposed legislation included provisions regarding comprehensive paid sick leave; however, those provisions do not appear in the version of the legislation that the Senate passed on March 18. The legislature may still consider and adopt comprehensive paid sick leave that is not limited to periods of ordered quarantine or isolation.

Employer COVID-19 Resources

We will supplement this advisory after the proposed legislation is enacted. Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic, and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.