New York employers must understand COVID-19 paid leave requirements

New York employers face unique challenges in dealing with the extreme impacts of the novel coronavirus on their workplaces. One major issue for employers, especially in our hard-hit city, is the legal right to COVID-19-related paid leave that Congress promptly created in response to the outbreak in the Families First Coronavirus Response Act (FFCRA).

Eligibility for COVID-19 paid leave

The FFCRA leave applies to employees of private employers with under 500 employees and to employees of certain public employers. There are three kinds of COVID-19 leave:

1. Sick leave paid at regular rate of pay: Employees are entitled to two weeks or 80 hours pay at the worker’s regular rate (or the minimum wage, whichever is greater) for any one of these situations: the employee is under public quarantine or a stay-at-home order; the employee’s medical provider has told them to self-quarantine; or the employee is seeking a COVID-19 diagnosis because of symptoms. Part-time employees may be eligible for this leave on a pro rata basis.

2. Sick leave paid at two-thirds of regular rate: Employees are entitled to two weeks or 80 hours pay at two-thirds of their regular rate of pay (or 2/3 of the minimum wage, whichever is greater) if the employee is caring for someone in quarantine or under a stay-at-home order or if the employee is caring for their child when school or child care is closed due to the coronavirus. Part-time employees may also be eligible for this leave on a pro rata basis.

3. Family leave paid at two-thirds of regular rate: Employees are entitled to an additional 10 weeks at two-thirds pay when the employee has been with the company a minimum of 30 days and is caring for their child who is unable to go to school or child care because of COVID-19. Some public employees covered by the sick leave provisions may not be eligible for this family leave. In addition, employers with under 50 workers may be eligible for an exemption from this provision if participation is likely to put the employer out of business.

An employee taking COVID-19 leave under any of the above provisions must provide reasonable notice of the leave to their employer.

As described in a U.S. Department of Labor (DOL) blog, the Wage and Hour Division (WHD) within the DOL is conducting vigorous outreach to employers and employees alike to spread information about the new leave regulations. As of the date of this blog post, the agency reported that it had processed over 400 complaints that employers had wrongly denied employees’ requests for COVID-19 paid leave.

Fortunately, the FFCRA also includes provisions to support covered employers. For example, employers paying COVID-19 paid leave will be eligible for federal tax credits to cover the cost.

The DOL is providing an information center about COVID-19 paid leave here. These leave requirements run through Dec. 31, 2020.