New US and New York Paid Sick Leave and Paid Family Leave Requirements in the Age of COVID-19

As they fight the spread of COVID-19, governments are taking action to reduce the burden on employees who are unable to work due to circumstances related to the pandemic. On Wednesday, March 18, 2020, both the federal government and New York passed groundbreaking paid leave laws. The federal law applies only to employers that employ fewer than 500 workers and goes into effect on April 2, 2020. In contrast, the New York state law applies to all employers and is immediately effective.

The Federal Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (EPSLA) was signed into law as part of a package of legislation referred to as the Families First Coronavirus Response Act. The EPSLA requires covered employers — limited to those employers that have fewer than 500 employees — to provide paid sick leave to individuals who miss work for the following reasons:

• They are subject to a governmental quarantine or isolation order related to COVID-19.
• They have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• They are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
• They are caring for an individual who is subject to a governmental quarantine order or a self-quarantine advised by a medical provider.
• They are a caregiver to a child whose school or other care program has been closed or whose other caregiver is unavailable as a result of the pandemic.

The EPSLA also permits the Secretary of Health & Human Services to specify other similar conditions that would qualify for paid sick leave under the EPSLA. Employers may elect to exclude individuals who are health care providers or emergency responders.

Affected employees are entitled to up to 80 hours of paid sick leave, with part-time employees receiving a prorated amount of paid leave. Unlike many other statutory leave provisions, there is no minimum length of employment an employee must have in order to qualify for leave — leave is immediately available to all employees regardless of length of service. Employers may not require employees to use other paid leave provided by the employer prior to making use of the paid leave afforded in the EPSLA. 

For individuals who take leave because they are themselves subject to quarantine or have symptoms of COVID-19, the leave is paid at the employee’s regular rate of compensation but is capped at $511 per day and $5,110 in the aggregate. Individuals who take leave to provide care to others as permitted under the EPSLA receive pay at a rate equal to two-thirds of their regular rate of compensation, with a cap of $200 per day and $2,000 in the aggregate.

Leave taken under the EPSLA is job-protected, and retaliation against employees who take leave is prohibited.

Employers will be required to post a notice to be prepared by the Department of Labor describing the requirements of the EPSLA. The notice is to be available no later than March 25, 2020.

The EPSLA automatically sunsets on Dec. 31, 2020, and no leave shall carry over to the following year.

The Emergency Family and Medical Leave Expansion Act

The Families First Coronavirus Response Act also incorporates an expansion of the Family and Medical Leave Act (FMLA) and provides, for the first time, paid leave under the FMLA. As with the EPSLA, this Act applies only to employers that employ fewer than 500 workers. The Act also lowers the eligibility requirement such that any employee who has worked for the employer for at least 30 calendar days prior to his or her designated leave may be eligible to receive paid family and medical leave. Like the EPSLA, this Act also includes language permitting the Secretary of Labor to exclude health care providers and emergency responders from the definition of employees eligible for such leave, and additionally to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. 

The leave permitted under the Act is narrow and applies only to individuals who are unable to work or telework because of a need to care for a son or daughter under the age of 18 because the child’s school or place of care has closed or the regular caregiver of the child is unavailable, in either case due to the COVID-19 pandemic. The version of the Act originally passed by the House of Representatives provided other bases for leave, but those provisions were removed in a corrected version of the bill passed on March 16.

The first 10 days of leave may be unpaid, although the employee must be permitted to use any available paid vacation, personal or sick leave. Thereafter, for up to an additional 10 weeks of leave, the employee receives pay at a rate equal to two-thirds of the employee’s regular rate of compensation, with a cap of $200 per day and $10,000 in the aggregate.

Leave under the Act is job-protected, with potential exceptions for employers of fewer than 25 employees, and retaliation against employees who take leave is prohibited. As is the case under the EPSLA, employers may elect to exclude individuals who are health care providers or emergency responders.

New York Adopts Paid Sick Leave and Job Protection Legislation

Also on March 18, Gov. Andrew Cuomo signed an act “providing requirements for sick leave and the provision of certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.” The Act is immediately effective and applies to all employers.

The Act provides for sick leave for an employee who is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 issued by the state of New York, the Department of Health, a local board of health or other any governmental entity duly authorized to issue such order. Employers that had 100 or more employees on Jan. 1, 2020, are required to provide 14 days of paid leave. Employers that had between 11 and 99 employees are required to provide five days of paid leave and unpaid leave thereafter. Employers of 10 or fewer employees that had a net income of $1 million or more in the previous tax year are required to provide five days of paid leave and unpaid leave thereafter. Employers of 10 or fewer employees that had a net income of less than $1 million in the previous tax year are required to provide unpaid leave.

Leave taken under the Act is job-protected and may not be charged against an employee’s accrued sick leave. Retaliation against employees who take the leave is prohibited. In addition, the Act is intended to coordinate with federal leave benefits, including the EPSLA and the Emergency Family and Medical Leave Expansion Act discussed above — an employee can receive the greater of the benefits available under state or federal law without duplication of benefits.

For questions regarding employer obligations in addressing the COVID-19 pandemic, please contact a member of Kramer Levin’s Employment Law Department.