COVID-19 PANDEMIC

FAQS ON FEDERAL AND NEW YORK STATE PAID LEAVE 

Last Updated: August 11, 2020

In response to COVID-19, both the federal and NY state governments have enacted new laws to provide additional paid leave and job protections to New Yorkers.

If you need to take time off from your job for a COVID-19 related reason, you may have a range of job protections under state or federal law, or both. Generally, the New York State protections apply for fewer reasons but cover a broader segment of workers. The federal protections are more generous in terms of what they provide and the reasons a worker may qualify, but cover fewer employers (and thus, a smaller percentage of American workers in the economy).

FEDERAL LAW – THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The Families First Coronavirus Response Act (“FFCRA”) went into effect on April 1, and lasts only until December 31, 2020. It has several components, two of which grant new types of paid leave to workers: 1) Emergency Paid Sick Leave (“Paid Sick Leave”) and 2) Emergency Paid Family and Medical Leave (“Paid Family Leave”).

Q. Which employers are covered by the FFCRA?

The FFCRA applies to all private employers with fewer than 500 employees, and most government employers (some federal workers are excluded). Some small businesses with less than 50 employees will be able to qualify for an exemption, and some health care providers and emergency responders are excluded (see below for more on this). For Paid Sick Leave, there are no minimum length-of-service requirements. For Paid Family Leave, an employee has to have been on the payroll for 30 days to be covered.

Q. Wait, I work for a really big company. Does that mean I’m not covered?

Unfortunately, you most likely aren’t. Most Americans work for companies that employ over 500 employees (and thus are excluded from the FFCRA) or under 50 employees (and thus could likely claim a small business exemption). This means most American workers are not actually covered by this new law.

Q. I work at a franchise. How do I know if I’m covered?

If the franchise owner has more than 500 employees total, then your employer is likely not covered by the FFCRA. If the franchise owner has less than 500 employees, then he or she is likely covered, and required to offer you paid leave if you are eligible.

Q. How does an employee qualify for either Paid Sick leave or Paid Family leave benefits?

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1. is subject to a Federal, State, or local quarantine or isolation orderrelated to COVID-19;

2. has been advised by a health care provider to self-quarantinerelated to COVID-19 (NOTE: this includes workers who have been advised to self-quarantine because they are especially vulnerable to COVID due to a health condition!);

3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

For Paid Family Leave, an employee ONLY qualifies for reason #5 above: if she/he is unable to work or telework and needs to care for a child under 18 whose school or care provider is closed or unavailable because of COVID-19.

Please note that reason #5 also covers children over the age of 18 “incapable of self-care due to a disability.”

If you need to take leave for reasons not listed above, you will not receive Paid Family Leave, but you may be eligible for unpaid leave under the regular Family and Medical Leave Act (“FMLA”).

Q. What if I am an independent contractor, a gig worker, or otherwise self-employed ?

You can also take Paid Sick Leave and Paid Family Leave for the purposes covered in the FFCRA, but your “pay” will come in the form of a reimbursement through payroll tax credits when you file your self-employment taxes with the federal government. The limitations on pay and length of leave that apply to employees are the same for self-employed individuals. NOTE: the FFCRA does not restrict access to these tax credits based on the type of taxpayer identification number you use.

Q. Did you say that healthcare providers and emergency responders are excluded from the FFCRA?

Yes. Unfortunately, many healthcare workers and emergency responders can be excluded from receiving Paid Sick Leave or Paid Family Leave at their employer’s discretion. While the initial Department of Labor regulations interpreted this exemption very broadly (including anyone employed at an institution that provides healthcare), a recent federal court decision struck down this interpretation, making it more likely that the exemption will only apply to employees directly furnishing healthcare services. Under this new ruling, a doctor or nurse is still likely exempt, but workers in billing, janitorial services, payroll or other roles not directly related to healthcare are likely eligible for leave (assuming their employer is covered by the FFCRA to begin with).

Q. Can immigrant workers take Paid Sick Leave and Paid Family Leave under the FFCRA?

Yes. There are no immigration status-related restrictions on eligibility for leave under the FFCRA. Because these benefits are paid directly to you by your employer, you don’t have to interact with a government agency to receive them, unless you decide to file a claim alleging a violation. The FFCRA’s paid family leave provisions will be enforced by the U.S. Department of Labor’s Wage and Hour Division, which does not inquire about immigration status.

Q. What do these laws provide?

Emergency Paid Sick Leave provides up to 80 hours of paid sick leave based on employee’s regular schedule and rate of pay. Part time employees qualify to receive the average number of hours they worked over two weeks. However, the amount is capped depending on the reason for taking leave. If an employee is taking leave due to his or her own illness or suspected illness, he/she can receive 100% of pay up to $511 a day or $5,110 total. If he/she is taking leave to care for someone else who is ill or a child whose school or daycare is closed, he/she can receive 2/3 pay up to $200/day or $2,000 total.

Paid Sick Leave must be provided in addition to any preexisting leave policies, and employees must be permitted to use it before using any other type of leave. It is meant to run concurrently with the Paid Family Leave program, which means it is supposed to cover the first two weeks of your leave, which is not paid for under the Paid Family Leave program.

Paid Family Leave provides up to 10 weeks of paid leave at 2/3 the regular rate of pay, capped at $200/day and $10,000 total. The first two weeks of leave are unpaid (and thus an employee should use Paid Sick Leave to cover this time period).

Q. Can I take my Paid Family Leave intermittently?

Yes, as long as you don’t pose an infection risk to others at your worksite.

Q. Can I take my Paid Sick Leave intermittently?

You may only take your Paid Sick Leave intermittently if you are taking the leave to care for care for your child. If you take Paid Sick Leave for another qualifying reason, you have to take the days consecutively until you no longer have a qualifying reason for Paid Sick Leave.

Q. What if I need to take time off to care for my child, but I can’t afford a 1/3 pay cut?

You may be able to be paid your normal wages, if your employer agrees to allow you to supplement your FFCRA leave with preexisting leave you had under its own policy. For example, if you are receiving 2/3 of your normal earning from Paid Family Leave, you could use your preexisting leave to get the additional 1/3 of your normal earnings so that you receive your full earnings for each hour.  DOL has recently updated its guidance to clarify that employers CAN require employees to take preexisting leave concurrently with their Paid Family Leave. If your employer does require this, it must pay you the full amount to which you are entitled under your employer’s existing paid leave policy. Please see the Department of Labor guidance for more information.

Q. What if my workplace closed, or I was temporarily furloughed?

If your workplace closed or if you have been furloughed, you are not eligible for either of the FFCRA paid leave programs. However you are likely eligible for either regular Unemployment Insurance or Pandemic Unemployment Assistance. Please see “Coronavirus and Unemployment Insurance FAQs”

Q. I was laid off at the beginning of the COVID-19 Pandemic, and my employer wants to rehire me. Do I still qualify for Paid Family leave or do I have to work for 30 days first?

If your employer is covered by the FFCRA, you qualify for Paid Family Leave immediately upon returning to work, as long as you were on the payroll for at least thirty of the last sixty days before your employment was terminated. You also still need to qualify under one of eligibility criteria for paid leave listed above. If you have a question regarding your employment status, call Empire Justice Center at 1-(800)-724-0490 ext. 5827.

Q. What if I already took some FMLA leave in the last 12 months?

Unfortunately the new law is only an expansion on the qualifying reasons an employee can qualify for FMLA, not on the amount of time an employee can take. Paid Family Leave taken under the FFCRA counts towards your 12 week FMLA total. For example, if you took 8 weeks of FMLA leave over the last 12 months to care for a loved one recovering from surgery, or to care for a new baby, you would only have 4 weeks of FMLA remaining to use under the FFCRA.

Q. My employer wants me to come back, but because of an underlying health condition my doctor told me that I’m especially vulnerable to COVID-19. Do I qualified for Paid Sick Leave if I don’t have the COVID-19 virus?

Yes. Provided that you see a healthcare worker who deems you particularly vulnerable to COVID-19, you would qualify for Paid Sick Leave under the FFCRA, but only if your doctor advises you to self-quarantine based on the belief that you’re particularly vulnerable. We recommend asking your health care provider for a note saying this to provide to your employer.

Q. What if someone in my household is especially vulnerable to COVID-19 and I don’t want to expose them? Can I take Paid Sick Leave under the FFCRA?

Unfortunately the regulations do not state that workers can qualify in that situation.

Q. Can I get Paid Family Leave if I have to be out for some other reason, like if I’m sick with COVID-19 and don’t get better within 2 weeks?

Unfortunately the FFCRA did NOT Paid Family Leave benefits to employees for any other reason besides caring for a child whose school or childcare has closed. If you become ill with COVID you are only eligible for Paid Sick Leave, not Paid Family Leave under the FFCRA. Regular FMLA only provides for unpaid leave, so if you take longer than 14 days to recover, you will have to rely on your employer’s preexisting leave policy, short term disability insurance, or take unpaid FMLA leave. Please note that even if your employer isn’t covered or you don’t qualify for regular FMLA, you are still likely entitled to unpaid leave as a reasonable accommodation under the Americans with Disabilities Act.

Q. Does my employer have to continue to provide health coverage during my leave?

Yes. If your employer provides group health coverage that you’ve elected, you are entitled to continued coverage during your leave under the FFCRA.  This applies to all of the benefits associated with your health plan, such as dental care, eye care, mental health counseling, etc. Even if you choose not to retain that coverage during your Paid Leave, you are entitled to be reinstated to the same coverage once you return to work.

Q. What if I’m on Paid Sick Leave or Paid Family Leave for Reason #5 – that my child’s school is closed, but then the school year ends? Do I still qualify for leave?

Once the school year is over, it depends on what your usual plan was for childcare during the summer – if the childcare provider, such as a summer camp, that you would typically use is still closed due to COVID, you may still be eligible. If your usual summer childcare provider is open and available, you are likely no longer eligible for Paid Sick Leave or Paid Family Leave under the FFCRA.

Q. If I take leave under the FFCRA, am I guaranteed to get my job back?

Your employer is required to provide you with the same or nearly equivalent job once you return to work following leave, with a few exceptions. Your employer is still allowed to take an action that would have affected you regardless of whether or not you took leave (for example, if your employer lays off a number of employees for budget reasons and your job is part of that layoff). Other exceptions are if you are a highly-paid “key” employee as defined under the FMLA, or if your employer has under 25 employees and can show that your job no longer exists due to economic conditions (along with several other requirements).

Q. What if my employer retaliates against me for taking leave?

Your employer is prohibited from firing, disciplining you or otherwise discriminating against you because you took leave under the FFCRA. If you believe your employer has done this and you are interested in a legal consultation please contact the Empire Justice Center at 1-(800)-724-0490 ext. 5827.

Q. What if my employer refuses to comply with either of these laws?

A failure to pay Paid Sick Leave is violation of the Fair Labor Standards Act, and failure to provide Paid Family Leave is a violation of the Family and Medical Leave Act. Both of these laws are enforced by the United States Department of Labor, and both allow you to bring a civil suit against your employer for any violations.

If you believe your employer is violating either law, please contact the Empire Justice Center at (585) 295-5835 for an evaluation of your potential claims. Unfortunately, there is no right to file a civil suit against employers with fewer than 50 employees, but you could still file a complaint with the U.S. Department of Labor (“DOL”). If you would like to file a complaint with the DOL, you can call 1-866-4US-WAGE.

Q. Who’s paying for all this?

Employers are not left on their own to pay for all this leave – the FFCRA also includes a section providing a 100% tax credit to employers whose employees claim COVID-related leave.

Q. Will I need to provide documentation to my employer ahead of time?

Per a recent federal court decision, you do not need to provide documentation in advance of taking leave unless your leave is “forseeable” and it is feasible for you to do so. Otherwise, you can do so after you go out on leave.

Q. What documentation do I need to provide?

The kind of information you need to provide depends on the reason that you’re taking leave. You may need to provide your employer with the following information:

• Your name
• The date(s) that you would like to have Paid Leave
• The qualifying reason for leave; and
• A statement (oral or written) that you aren’t able to work because of the qualified reason for leave
• the name of the government entity that issued the Quarantine or Isolation Order (if applicable)
• the name of the healthcare provider who advised you or your child/family member to self-quarantine (if applicable)

If you are taking Paid Sick Leave (and/or Paid Family and Medical Leave) because you are caring for a Son or Daughter whose place of care is closed, you’ll need to provide:

• The name of whomever it is you’re caring for
• The name of the place (School, Place of care, or Childcare provider) that has closed or is unavailable; and
• A promise to your employer that nobody else is suitable to take care of your child/dependent during the time that you want to take leave.

Be sure to keep any records relevant to your leave, because your employer can request any of them.

STATE LAW – NYS EMERGENCY PAID SICK LEAVE, FAMILY LEAVE, TDI

Effective immediately, New York State provides emergency sick leave, special paid family leave and special temporary disability insurance to workers subject to an official order of quarantine or isolation, or to parents caring for children under such an order.

Q. What does “official order of quarantine or isolation” mean?

It means that you only qualify for NY State emergency paid leave if your local health department has personally ordered you to quarantine or self-isolate because you have COVID-19 or are suspected of possibly having it. If you are unable to get an order from your local health department, your healthcare provider can also document your need to quarantine, but you still may need to produce documentation from your local health department within 30 days. For more information, please see the New York State government website at: https://paidfamilyleave.ny.gov/new-york-paid-family-leave-covid-19-faqs.

Q. I’m already taking leave under the FFCRA. Can I also take paid leave under state law?

No, you can only take state paid leave if you are not covered by the FFCRA.

Q. What does the state’s emergency paid sick leave law provide?

It requires your employer to provide leave for the duration of your quarantine. Whether that leave is paid or unpaid depends on the size of your employer.

• If your employer is small (10 or fewer employees, less than $1 million of net income) it does not have to pay you during the leave, but you are eligible for New York State Paid Family Leave and Disability Insurance.
• If your employer has 11-99 employers (or less, but with more than $1 million net income) it must give you 5 days of paid sick leave, after which you are eligible for PFL and NYS Disability Insurance.
• If your employer has 100+ employees, your employer should give you paid sick leave for the duration of your quarantine, up to 14 days.

Q. What if I need to take care of a close family member who has contracted COVID-19, and the  illness lasts for more than the 2 week quarantine period?

While there is no additional federal paid leave at the moment to cover that situation, New York State’s Paid Family Leave does likely apply. If you have an eligible family member who contracts COVID-19, you may be able to take “Family Care” to care for them, as COVID-19 is considered a serious health condition. This includes family members outside of New York State.

Family members that are eligible under Family Care include: your spouse, domestic partner (including same and different gender couples; legal registration not required), child/stepchild and anyone for whom you have legal custody, parent/stepparent, parent-in-law, grandparent or grandchild.

Q. What does New York State Paid Family Leave, or “Family Care,” provide?

Up to 10 weeks of leave to care for your close family member. In 2020, employees who take Paid Family Leave will receive 60% of their average weekly wage (AWW), capped at 60% of the New York State Average Weekly Wage. Your AWW is the average of your last eight weeks of pay prior to starting Paid Family Leave. The maximum weekly benefit for 2020 is $840.70. You can obtain an estimate of your benefit here: https://paidfamilyleave.ny.gov/PFLbenefitscalculator2020.

Q. Does my immigration status matter for the purposes of NYS Emergency Sick Leave or Family Care?

No, immigration status is not a factor for eligibility. You submit the application paperwork directly to your employer, not to a government agency. You can find the application forms here: https://paidfamilyleave.ny.gov/new-york-paid-family-leave-covid-19-faqs.

Q. What does New York State Disability Insurance provide?

New York State Disability Insurance provides employees who become ill or are injured off the job up to $170 per week in income for as long as 26 weeks.   To qualify, you must submit information about your employer and documentation from a doctor or other health care provider stating that your illness or injury prevents you from working.  Here is a link to the New York State website that explains the application process and provides an online application. http://www.wcb.ny.gov/content/main/offthejob/db-overview.jsp#howToFileClaim

However, you will not qualify if:

• You are not a bona employee – for example, if you work for a company as an independent contractor;
• You are eligible for paid sick leave or paid Family Medical Leave or some other type of pay from your employer while you are out of work; or
• You were injured on the job.  If your temporary disability was caused by a workplace accident or illness, you should apply instead for Worker’s Compensation.

You may qualify for disability benefits even if you were laid off from your job and are receiving unemployment insurance.  However, you cannot collect disability insurance and unemployment insurance at the same time.

Q. I’ve been called back to work, but I don’t feel like my employer is taking the necessary steps to protect us from COVID-19. What can I do?

Your employer is required to provide you with face protection. Whether it be a mask, or a face-shield. You’re also allowed to wear your own, but if you don’t have one, your employer is legally required to give you a mask at their expense. If you don’t have a mask and your employer is not giving you one, you can file a complaint with the NY Department of Labor here.

https://forms.ny.gov/s3/Department-of-Labor-COVID-19-Complaint-Form

OSHA has administered guidelines for protection against COVID-19, but unfortunately, they are not enforceable. Employers are still bound by regular OSHA guidelines, and need to maintain a sanitary workplace. If your employer is not maintaining a sanitary workplace, you may file a complaint with OSHA at: https://www.osha.gov/pls/osha7/eComplaintForm.html or call the regional office in Buffalo at (716) 551-3053.

Q. What if I was exposed to or contracted COVID-19 from my workplace?

If you believe you were exposed to COVID-19 at your work place, and you cannot work because of the illness, you may be eligible for Workers’ Compensation. Learn more about Workers’ Compensation here: http://www.wcb.ny.gov/content/main/Employers/Coverage_wc/emp_addCovLinks.jsp.

More questions about the Families First Coronavirus Response Act, New York State Emergency Paid Sick Leave, NYS Paid Family Leave, or NYS Disability Insurance during the Coronavirus Pandemic?

Please contact Empire Justice Center at 1-(800)-724-0490 ext. 5827.

Please note: Do not send us any nonpublic information about any legal matter for which you seek legal representation until we request that you do so. Empire Justice attorneys will inform you if and when your matter is considered for legal representation. Until that time, any information you provide WILL NOT be considered confidential, and NO attorney-client relationship is formed by communications received through this website. Any information available on the website is for general legal education purposes only, and is not legal advice.