Important Points: NYS COVID-19 Leave Law

Last week, just a couple of days before the 100% workforce reduction mandate, the Legislature approved and Governor Cuomo signed a new law that provides job protection and leave benefits for certain employees impacted by the COVID-19 pandemic.  Now that the flow of Executive Orders and guidance documents has slowed to a trickle, we wanted to share some important points to guide our local businesses.  These local businesses are the life blood of our Capital Region community – our favorite eateries, hair and nail salons, chiropractors, physical and occupational therapists, massage therapists, retail stores, spas, yoga studios and gyms, printers and so many other valued service providers, and in many instances, our friends.  We hope this guidance is helpful to you as you navigate the uncertainty of the COVID-19 world.  And we look forward to patronizing your business as soon as that is possible.

The 100% Workforce Reduction Mandate:

Effective Sunday, March 22, 2020 at 8 p.m., a 100% workforce reduction mandate was put in place.  It:

• Does apply to private for-profit and not-for-profits entities.
• Does not apply to essential businesses (there is a list, see link below).
  • This doesn’t mean everyone can show up to work. Only employees who are needed to perform the essential services or provide the essential products should report to work. (For example, if you are making masks and luxury phone covers, only those who are needed to make masks are to report to work.)  Telecommuting/remote working should still be in place to the maximum extent possible.
• Allows non-essential businesses that provide services, goods or support to essential businesses to be exempt from the 100% workforce reduction mandate.
  • Again, this doesn’t mean everyone can show up to work.
• Includes a process for a business to request a designation as an essential business (see link below).
• Allows non-essential businesses to have a single person in the office to answer phones, handle mail, etc.
  • This person is not supposed to be in contact with anyone else.

This Executive Order is currently effective through April 19, 2020.  Here are some helpful links:

• The guidance document issued by Empire State Development on essential businesses is here. (This has the application to request a designation as an essential business.)
• Executive Order 202.8 (with the 100% workforce reduction mandate) is here.

COVID-19 Paid Leave:

This law was passed a couple of days before the 100% workforce reduction mandate.  It applies to employees who are subject to a “mandatory or precautionary order of quarantine or isolation.” (We will refer to these here as “orders”).  It includes job protections, mandated paid leave and includes provisions on Paid Family Leave and Disability benefits.

Mandated Paid Leave:

• Employers have to provide unpaid and paid leave to employees during the period of time an order is in place. The requirements for each employer depend largely on the number of employees as of January 1, 2020:
  • All employers who have less than 100 employees have to provide unpaid leave during the period of time an order is in place.
  • In addition:
    • If the business has 1-10 employees and had net income of more than $1 million during its last tax year OR if it had 11-99 employees (regardless of income), it also has to provide five days paid leave to employees;
    • If the business has 100 or more employees, then it has to provide 14 days paid leave to employees.
  • Employees don’t have to apply for this paid leave. And you cannot require an employee to first use their accrued sick leave.
  • There are some exceptions:
    • If the employee traveled to a foreign country subject to a Level 1 or 2 travel health notice, the trip wasn’t for work and the employee knew about the travel health notice, then the employee is not entitled to paid leave benefits.
    • Employees who are deemed asymptomatic or who haven’t yet been diagnosed and are physically able to work (remotely or otherwise) during the period of time the order is in effect are not protected by this legislation (which would include the unpaid/paid leave benefits, paid family leave/disability benefits and job protections). Unfortunately, it seems a bit unclear what this means (and also what is included as a mandatory or precautionary order of quarantine or isolation).  The Department of Labor is authorized to issue emergency regulations, so hopefully useful guidance will follow soon; in the meantime, we recommend conservative interpretations of these provisions.
  • There are also provisions which apply to public employers.

Paid Family Leave/Disability Benefits

• After an employee has received any paid leave provided for above, and used any remaining sick leave, the employee may be able to obtain paid family leave or disability benefits. The legislation loosens up the procedures and eligibility for these benefits in a few ways, for example:
  • A “disability” includes an inability to perform regular work duties because of an order.
  • Waiting periods for benefits are eliminated, allowing them to be paid on the first day of disability (or unemployment).
  • Family leave includes both leave taken when the employee is subject to an order or leave to care for minor children who are subject to an order.

Job Protections:

• Once an employee returns to work, the employee must be restored to the same position with the same pay as before leave was taken. The employee cannot be fired, retaliated against or discriminated against for taking leave.

Here are some links for more on this legislation:

• The legislation can be found here.
• Guidance on the legislation is here.

Some other things to keep in mind:

• If an employer closes down its operations, then employees may apply for unemployment benefits. Be sure to provide your employees with the required NYS record of employment form.
• The legislation provides that if a federal law is put in place which provides employees with COVID-19 benefits, then the NYS benefits don’t apply unless they exceed what the federal law applies (and then only to the extent of the excess). There has been some activity in this area, so there could be changes to the impact of the NYS legislation.
• There were a number of other New York State Executive Orders and other governmental orders issued last week that could affect your business or your employees. These include forbearance on mortgage payments, abatements for sales tax filings and payments (these even include interest on late payments), procedures for virtual notary publics, and court shutdowns which impact lawsuits and evictions.  Please let us know if you need help navigating these.
• Don’t forget to take into account your employee benefit plans. Depending on the measures you need to take during this pandemic, you may need to look at whether you have to continue to provide health care benefits, FMLA leave or give COBRA notifications.  Please let us know if we can help.

If you have any questions, please get in touch with Rose McKenna at rmckenna@joneshacker.com or call 518-270-1257.