Seyfarth Synopsis:  The law requiring New York employers to provide leave for certain employees affected by COVID-19 went into effect on March 18. The State has released updated FAQs that provide some clarification on the law.

The law provides for job protected paid sick and unpaid leave, as well as an expansion of the state's paid family leave and disability benefits, to certain employees who are "subject to mandatory or precautionary orders of quarantine or isolation" related to COVID-19.  See our prior alert for a synopsis of the law's provisions. Under the new FAQs, the State has clarified a number of the statute's ambiguities.

"Days" of Leave

With respect to the amount of leave, an FAQ clarifies that "days" refers to "calendar days," as opposed to "work days."  Therefore, employees who work a five-day week and are entitled to 14 days of leave under the law will receive ten working days of leave from work.

Interplay with Federal Leave Law

The leave provisions in the new law are not available unless they are in excess of  the benefits provided by the federal Families First Coronavirus Response Act ("FFCRA"), which was enacted on March 18, 2020 and appears to go into effect on April 1, 2020, according to the DOL's latest guidance. That means that if the State law would provide an employee with more leave than FFCRA, then the New York employee would be able to receive the greater New York leave benefits.

The FAQs clarify the two circumstances under which the New York law is more generous than FFCRA:  (1) it applies to more employers, and (2) in some instances it provides for more pay while on leave.

As to the first, FFCRA's provisions on paid sick time and paid family medical leave are not applicable to private employers with 500 or more employees. Thus, any New York State employers with 500+ employees would be required to provide only the benefits set forth under the New York law. Employers that are subject to both the FFCRA and the New York law (i.e., they have fewer than 500 employees) should anticipate potential complications when assessing how to coordinate federal and state leave mandates related to COVID-19 absences.

As to the second, if a New York employer has more than 100 employees but fewer than 500, then it will be required to provide benefits under both laws.  In that situation, FFCRA calls for 80 hours of paid leave subject to certain caps, while the New York law calls for 14 calendar days at the employee's regular rate of pay, based on clarifications from the FAQs.  Therefore, the employee would be entitled to the difference in pay between the FFCRA pay and the employee's regular rate, if applicable.

Employer Takeaways:

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with HR 6201 and paid leave requirements generally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.