Takeaways

Effective immediately, New York State employees unable to work due to the “stay at home” orders have job protection during the isolation period.
Many employees in New York State will be entitled to paid sick leave during this period, in addition to any accrued sick leave their employers already provide them, and can access existing state disability or family leave benefits during the “stay at home” order.
The availability of these benefits will be reduced or eliminated to the extent the federal government requires paid sick leave benefits.

On March 18, 2020, Governor Andrew Cuomo signed Senate Bill S8091 into law to provide sick leave and job protection for New York workers during the COVID-19 crisis.  Under the new law, effective immediately, companies cannot fire or penalize employees who are unable to work while subject to “a mandatory or precautionary order of quarantine or isolation due to COVID-19.” The order must be issued by the state of New York, the department of health, local board of health, or any governmental entity with authority to issue such orders. The job protection lasts for the duration of the period that employees are self-isolating under a mandatory or precautionary order. Employees who are able to work remotely while under the “stay at home” orders and who are asymptomatic or not yet diagnosed are not covered by the new law. 

Depending on the company’s size, employers must also provide some form of paid sick leave and access to short term disability benefits and paid family leave. Employees who are under quarantine due to personal travel to a geographic region designated at Level 2 or Level 3 risk by the Centers for Disease Control, when on notice of such restrictions, are not eligible for the paid leave benefits under the new law but are covered by the job protection provisions and may apply any accrued paid sick leave to their absence.

While the job protection provisions of the law apply to New York State employers of any size, the law’s paid leave provisions depend on the size of the employer. 

  • Employers with at least 100 employees must provide at least 14 days of paid sick leave.
  • Employers with between 11 and 99 employees must provide at least five days of paid sick leave and, after that, give employees access to state short term disability benefits and paid family leave benefits.
  • Employers with 10 or fewer employees and more than $1 million in revenue in the previous tax year must provide at least five days of paid sick leave and, after that, give employees access to state short term disability benefits and paid family leave benefits.
  • Employers with 10 or fewer employees and less than $1 million in revenue in the previous tax year must give their workers access to state paid family leave and short-term disability benefits but have no obligation to pay for sick leave. Employees remain entitled to unpaid sick leave during the period of the quarantine or isolation order.

Public employers are also entitled to at least 14 days of paid sick during any mandatory or precautionary orders of quarantine or isolation due to COVID-19 leave.

The law specifies that the leave provided during this period cannot reduce an employee’s accrued sick leave.

To the extent that the federal government provides sick leave and/or employee benefits for employees related to COVID-19 at the level required under this statute, those aspects of the statute’s benefits will not be available to employees covered by the federal law.  If the federal benefits are less generous, however, employees will be able to supplement the federal benefits through application of New York law to make up the difference.  As noted in Pillsbury’s March 18, 2020 Client Alert, the federal Families First Coronavirus Response Act is expected to go into effect on April 2, 2020, and will provide partial income replacement benefits to employees working for private employers with fewer than 500 employees, if, among other reasons, employees are unable to work due to isolation or quarantine orders or advisories.

Upon employees’ return to work, the law requires employers to restore employees to the same positions of employment held prior to taking any leave with the same pay and other terms and conditions of employment.

The law also allows for individuals to immediately file for unemployment insurance benefits when a business closes because of COVID-19.

Pillsbury’s experienced crisis management professionals are closely monitoring the global threat of COVID-19, drawing on the firm's capabilities in supply chain management, insurance law, cybersecurity, employment law, corporate law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 resources page.

Ian Wahrenbrock is a senior law clerk in Pillsbury’s Litigation practice. Julia Judish is a special counsel in the Employment and Labor practice.