FEDERAL: Emergency Paid Sick Leave

FEDERAL: Emergency Paid Family Leave

NY STATE: Paid Sick Leave

Quick Summary

Offers all-new paid time off benefits to employees for:  

1. To self-quarantine, seek a diagnosis or preventive care, or receive treatment for COVID-19.

2. To care for a child whose school has closed, or if their child care provider is unavailable, due to COVID19.


Effective April 1st, 2020- December 31st 2020 (may be eliminated sooner if no longer needed).

This is in addition to the Federal Emergency Paid Sick Leave.

This is an expansion to the pre-existing FMLA leave benefit, but expands eligibility and terms to:

  • Allow for leave to care for kids off from school or daycare (under 18 years old) due to the Coronavirus.
  • Adds on a paid component, when otherwise FMLA is unpaid.
  • Expands required employer eligibility (from usual 50+ employee businesses).

Effective April 1st, 2020- December 31st 2020 (may be eliminated sooner if no longer needed)

Note: standard FMLA eligibility and terms remain in place for all other leave needs as usual for employers with 50 or more employees.

Supplements existing NYS Paid Family Leave as well as New York State Disability Benefits to provide extended coverage for employees who have been quarantined or are isolated as a result of COVID-19 (Diagnosis, mandatory quarantine, or waiting a diagnosis).

A guide to how employees can receive a mandatory order following a Doctor’s order: https://paidfamilyleave.ny.gov/system/files/documents/2020/03/obtaining-order-of-quarantine.pdf

This bill also now requires specific Paid Sick Time to be offered to employees currently for COVID reasons, but will extend and be required for all sick absences in 2021 depending on employer size. (will require review of time off policies for compliance).


Effective March 20th, 2020 at 8pm. Removes any existing waiting periods for DBL or PFL benefits.  

Where applicable, employees would be able to apply for PFL and DBL to run and receive the benefits concurrently – this has not been possible under previous leave rules. Benefit amounts would be a combination of payments from PFL and from DBL, which appears to be up to 100% of an employee’s average weekly wage.                                                              

Where any of the new Federal leaves apply (Emergency Paid Sick Leave and/or Emergency Paid Family Leave) these state benefits would only apply if they would provide employee benefits in excess of what is available under federal law.

Businesses that must Comply

  • Employers with fewer than 500 employees.
  • Local, state, and federal government employers.

  • Employers with fewer than 500 employees.
  • Local, state, and federal government employers.

*Employers with fewer than 50 employees are eligible for an exemption from the requirements to provide leave to care for a child whose school is closed, or child care is unavailable in cases where the viability of the business is threatened.

  • Employers with 10 or fewer employees and a net income of less than one million in the previous tax year: Must provide quarantined or isolated employees with unpaid sick leave until the termination of any mandatory or precautionary quarantine or isolation order due to COVID-19. During this period, such employees are eligible for New York State Paid Family Leave and disability benefits.

  • Employers with (i) between 11 and 99 employees, or (ii) 10 or fewer employees and a net income of greater than one million dollars in the previous tax year: Must provide quarantined or isolated employees at least five days of paid sick leave, followed by unpaid leave until the termination of any mandatory or precautionary quarantine or isolation order due to COVID-19. After five days of paid sick leave, such employees may be eligible for New York State Paid Family Leave and disability benefits.

  • Employers with 100 or more employees, regardless of any other status: Must provide quarantined or isolated employees with at least 14 days of paid sick leave during any mandatory or precautionary order of quarantine or isolation due to COVID-19. Although not specified, the job protection provisions of the bill support that, after 14 days of paid sick leave, employers must provide such employees with unpaid sick leave until the termination of any mandatory or precautionary quarantine order due to COVID-19.

  • Public employers must allow employees and officers to take at least 14 days of paid sick leave.

Employers are required to provide this paid sick leave separate from and in addition to any accruals for other types of time off (vacation, PTO, etc.). Employees cannot be required to make employees use any other forms of time off outside this NYS required sick leave.

*The paid sick leave days required mentioned above only need to be paid if the employee is missing time for their own illness. This time does not need to be provided by the employer or paid if they are missing time to care for someone due to Covid.

New information released indicates the number of paid sick days required by the law is calendar days -- not work days.  So, for example, the 5 days of paid sick leave that an employer with 11-99 employees is required to provide is not a full work week of paid sick leave.  It is only payment of the amount that an employee would have received for the 5 calendar day period immediately after the effective date of the mandatory or precautionary order of quarantine or isolation.

Employee Eligibility Requirement

  • Employees at companies with fewer than 500 employees
  • Local, state, and federal government employees
  • Employees who work under a multiemployer collective agreement and whose employers pay into a multiemployer plan.
  • It is available immediately to all employees, regardless of length of employment.
  • Employees at companies with fewer than 500 employees
  • Local, state, and federal government employees
  • Employees who work under a multiemployer collective agreement and whose employers pay into a multiemployer plan.
  • Employees must have worked 30 days for the employer.
  • Does not apply where telework is available or occurring.

If employed as of 1/1/2020, employees are eligible for the Paid Sick Leave and the Pf/DB Leave.

An employee who chooses to self-quarantine is not entitled to paid sick leave under the law.

Situation Eligibility Requirement

1. To self-quarantine, seek a diagnosis or preventive care, or receive treatment for COVID-19.

2. To care for a child whose school has closed, or if their child care provider is unavailable, due to COVID19.

This bill expands the eligibility for FMLA use, to care for kids off from school or daycare (under 18 years old) related to Covid circumstances.

For DBL: Includes employees who are themselves diagnosed and sick with Covid, being unable to work as a result.

For PFL: Employees who are caring for someone who is diagnosed, sick or quarantined, or themselves are under a “mandatory or precautionary order of quarantine or isolation”. This would be employees who have been quarantined or isolated as a result of an order issued by the state of New York, the department of health, or any other government entity authorized to issue such an order due to COVID-19. Employees under self-quarantine or practicing voluntary “social distancing” are not covered.

Benefit Eligibility

For employees to self-quarantine, seek a diagnosis or preventive care, or receive treatment for COVID-19:

  • Eligible full-time employees are entitled to two weeks (80 hours) of fully paid time off (up to $511 per day). Up to $5,110 max (10 days).
  • Eligible part-time employees are entitled to fully paid time off (up to $511 per day) for the typical number of hours that they work in a typical two-week period. Up to $5,110 max (10 days).

For employees to care for a family member or to care for a child whose school has closed, or if their child care provider is unavailable due to COVID-19:

  • Eligible full-time employees are entitled to two weeks (80 hours) paid time off at two-thirds of their regular pay (up to $200 per day) Up to $2,000 (this means two weeks equals 10 days)
  • Eligible part-time employees are also entitled to the typical number of hours that they work in a typical two-week period at two-thirds of their typical pay (up to $200 per day). Up to $2,000 (this means two weeks equals 10 days)

Benefits to be paid at their usual rate of pay.

Where State benefits also apply, they can be used to subsidized these Fed benefits to get the benefit up to 100% of the employee's usual income.

Eligible full-time employees and part-time employees are entitled to 12 weeks of job-protected leave to take care for their children in the event of a school closure or their child care provider is unavailable due to COVID-19.

  • The 12 weeks of job-protected leave include two weeks of unpaid leave (10 days), followed by 10 weeks of paid leave.
  • Eligible employees may elect or be required to overlap the initial two weeks of unpaid leave with two weeks of other paid leave they have available. *The first 2 weeks of this leave should be required to be overlapped with the Federal Emergency Paid Sick Leave. This Emergency Paid Family Leave then provides an additional 10 weeks of paid leave in addition to that Emergency Paid Sick Leave benefit.

Eligible employees will receive a benefit from their employers that will be no less than two-thirds of the employee’s usual pay during the paid portion of this leave, capped at $200 per day, $10,000 total (50 day max).

Employees MUST exhaust all of the required paid sick leave (listed above) BEFORE they can be eligible, apply for, and receive the expanded DBL/PFL benefits. The paid sick leave days required mentioned above only need to be paid if the employee is missing time for their own illness. This time does not need to be provided by the employer or paid if they are missing time to care for someone due to Covid.

Employees may be eligible to take BOTH disability benefits and Paid Family Leave benefits up to a maximum disability benefit of $2,043.92 and up to a maximum Paid Family Leave benefit of $840.70, for a TOTAL of $2,884.62 per week.

Where applicable, employees would be able to apply for PFL and DBL to run and receive the benefits concurrently – this has not been possible under current law. Benefit amounts would be a combination of payments from PFL and from DBL up to 100% of an employee’s average weekly wage.                                                              

Where any of the newly passed Federal leaves apply (Emergency Paid Sick Leave and/or Emergency Paid Family Leave) these state benefits would only apply if they would provide employee benefits in excess of what is available under federal law.

Who is Responsible for Paying

Employers initially front the cost of emergency paid sick leave but will be fully reimbursed by the federal government within three months.

The reimbursement will cover both the wages paid and the employer’s contribution to employee health insurance premiums during the period of leave.

Employers initially front the cost similar to the Emergency Paid Sick Leave.

DBL and PFL benefits are still paid through the usual insurance carriers and NYS.

The required Paid sick leave mentioned here (and to be enacted across all employers for all situations in 2021) is paid by the employer, the same way any vacation, sick, personal, or PTO would be paid.
NOTE: in certain situations, you may be able to count this time as overlap with the Federal Paid benefits outlined in this document for COVID absences, and therefore apply for reimbursement through those channels for this paid sick time.

Method of Repayment

When employers pay their employees, they are required to withhold from their employees' paychecks federal income taxes and the employees' share of Social Security and Medicare taxes. The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.

Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week.

The tax credit will be available for employers on wages paid through December 31, 2020, and state and local government employers are not eligible for the tax credits mentioned.

Employers would also be eligible for a refundable tax credit to be applied against the employer’s payroll tax liability equal to wages, per employee, of up to $200 per day (or a total of $10,000) paid to an employee making use of the family leave program, again subject to certain limitations.

With respect to these family leave payroll tax credits, an employer who is otherwise allowed a credit for family and medical leave under Internal Revenue Code 45S cannot get a double benefit. Note that an employer may elect out, on a quarter by quarter basis. Presumably, this election would be made to take other tax benefits.

The tax credit will be available for employers on wages paid through December 31, 2020, and state and local government employers are not eligible for the tax credits mentioned.

See above.

Paperwork Requirements

Employees must provide documentation in support of the reasons for paid sick leave. These documents may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising to self-quarantine due to concerns related to COVID-19.

Employees must provide documentation in support of their need for expanded family and medical leave taken to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this requirement may be satisfied with a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. The employer must retain this notice or documentation in support of expanded family and medical leave.

Please also note that all existing certification requirements under the FMLA remain in effect if employees  are taking leave for one of the existing qualifying reasons under the FMLA. For example, if employees are taking leave beyond the two weeks of emergency paid sick leave because their medical condition for COVID-19-related reasons rises to the level of a serious health condition, they must continue to provide medical certifications.

Employees must provide documentation in support of the reasons for paid sick leave. These documents may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising to self-quarantine due to concerns related to COVID-19.

Employees must provide documentation in support of their need for expanded family and medical leave taken to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this requirement may be satisfied with a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. The employer must retain this notice or documentation in support of expanded family and medical leave.

Please also note that all existing certification requirements under the FMLA remain in effect if employees  are taking leave for one of the existing qualifying reasons under the FMLA. For example, if employees are taking leave beyond the two weeks of emergency paid sick leave because their medical condition for COVID-19-related reasons rises to the level of a serious health condition, they must continue to provide medical certifications.

 

Special forms apply and can be found here with instructions.  

Other Notes

The bill does not exempt small businesses with fewer than 50 employees. Employees at these companies are eligible for emergency paid sick leave under this bill. Businesses with fewer than 50 employees can only qualify for a narrow exemption if the Department of Labor determines that providing these benefits would jeopardize the viability of the business.

Health care workers and emergency responders are eligible for paid sick leave and paid family leave under this bill. Given the capacity challenges facing the healthcare system, employers have the discretion to exempt health care workers and emergency responders from the paid sick and paid family leave provisions. The Department of Labor also has the authority to to issue regulations exempting health care workers and emergency responders from the paid sick and paid family leave provisions.

Employers need to pay benefits premiums for employees while on this leave, and unlike normal leave circumstances, employees will not be responsible for paying the employer back, but this will also be covered as part of the Federal benefit reimbursement.

Employees cannot be required to use other forms of paid leave first. No carryover and no payout upon separation. 

Extensive and detailed FAQs on this federal leave can be found here.

Cannot require an employee to use any accrued paid sick leave during the paid or unpaid portion of this leave.

Extensive and detailed FAQs on this federal leave can be found here.

The leave provided under this bill shall not be in addition to those benefits, but rather will offset the difference of any benefits offered by the federal government.                                        

Additionally, employees are not eligible to take sick leave if they are deemed asymptomatic or have not yet been diagnosed with a medical condition and are physically able to work remotely or through other means while under a mandatory quarantine or isolation.                                                                                        

Note that the paid sick leave requirements above do not currently apply to private employers that voluntarily closed business operations for COVID-19 related safety and health concerns. However, this may change if New York implements a Shelter-In-Place Order. Also, if federal COVID-19 benefits are approved, these state benefits would only apply if they would provide employee benefits in excess of what is available under federal law.

The paid sick leave must be provided at the employee's regular rate of pay -- not simply the employee's base hourly rate of pay.  So, if the employee earns other forms of compensation in addition to the base hourly rate of pay that would otherwise be required to be included in the regular rate for purposes of overtime computation (such as commissions or non-discretionary bonuses), those other forms of compensation must also be included in the computation of the regular rate for purposes of the paid sick leave law.

An employee who was subject to a mandatory or precautionary order of quarantine or isolation that was issued prior to the enactment of the COVID-19 paid sick leave law is eligible for paid sick leave under the law if that order continued to be in effect after enactment of the law.