Complying with Paid Leave Law During COVID Outbreak: Federal Law

As we continue to cope with the COVID-19 pandemic, both our work and social lives remain on a pause. Given the rate of increase in infections, New York State extended the shelter-in-place policy for nonessential workers to April 15, 2020. Last week, I provided an update on the recent New York State sick leave laws, along with a reminder of an employee’s rights under New York City law. Landlords, management companies, and property owners must also adhere to the newly enacted federal laws regarding paid and unpaid sick leave that become effective on April 1, 2020, and are set to expire on Jan. 1, 2021.

Federal Emergency Paid Sick Leave Act

Paid leave for an employee’s own quarantine/caring for another individual subject to quarantine. An eligible employee is entitled to take paid sick leave for the following reasons:

1. She is subject to a federal, state, or local quarantine related to COVID-19;
2. She has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
3. She is experiencing COVID-19 symptoms and is seeking a diagnosis; or
4. She is caring for an individual subject to a federal, state, or local quarantine or advised by a health care provider to self-quarantine due to COVID-19.

An employee is also eligible to take leave if she is caring for her child if the child’s school or day care is closed or unavailable due to a public health emergency. This paid sick leave does not carry over into the next year and applies in addition to any paid sick leave mandated by New York State and New York City.

Eligibility for paid sick leave. Employers with fewer than 500 employees must provide full-time employees with 80 hours of paid sick leave at the employee’s regular rate, with several exceptions. Paid sick leave must be provided regardless of the employee’s duration of employment prior to this crisis. Employees who take the leave to care for another individual or for a child, however, are to receive two-thirds of their regular pay rate.

Cap on sick leave pay/calculating wages for part-time employees. Paid sick leave wages are limited to $511 per day for a total of up to $5,110 per employee. If the employee is caring for another person or their child, the sick leave wages are limited to $200 per day for a total of up to $2,000.

Calculating paid sick leave pay for a part-time employee is different than that of a full-time employee. A part-time employee’s paid sick leave wages are based on the average number of hours he worked for the six months prior to taking paid sick leave. A part-time employee who worked for less than six months prior to the leave is entitled to the average number of hours he would normally be scheduled to work over a two-week period.

A full-time employee of a business with fewer than 500 employees can request that she be paid for 80 hours of emergency paid sick leave instead of the initial 10 days of unpaid leave permitted by emergency family leave, which is discussed below.

Emergency Family and Medical Leave Act

The COVID-19 crisis has also resulted in temporary amendments to the Family and Medical Leave Act, the federal law providing for family leave for a period of up to 10 weeks. Coverage is expanded from employers of 50 or more employees to now cover all employers of fewer than 500 employees. Eligibility also has also been lowered so that unpaid leave is now available to any employee who has worked for the employer for at least a month.

An employer of 50 or fewer employees can request an exemption from these expanded rules if it can demonstrate that adhering to them would jeopardize the existence of its business.

Emergency leave/paid leave. The only qualifying reason for the emergency leave is for an employee, who is unable to work or telework, to care for her minor child if the child’s school or care provider is closed or unavailable. This employee must be employed by the employer for at least 30 days and may take up to 12 weeks of job protected leave.

The first 10-day period of the emergency leave may be unpaid. During this period, an employee may choose to substitute any accrued paid leave (such as vacation time) to cover some or all of this unpaid period. After 10 days, the employer must pay the employee at two-thirds the regular rate for the number of hours the employee would have been scheduled. Pay is limited to $200 per day for up to $10,000 per eligible employee.

Part-time employees who have worked for an employer for at least six months must be paid based on the average number of hours the employee worked prior to taking the emergency leave. Part-time employees who have worked for less than six months must be paid based on the employee’s average number of hours the employee would have reasonably been expected to work.

Restoration of position at end of emergency leave. An employer with 25 or more employees must return any employee who has taken emergency leave to the same or an equivalent position upon his return to work. An employer with fewer than 25 employees may take advantage of a limited exception. It is not obligated to return any such employee if the position no longer exists following the emergency leave due to an economic downturn. However, the employer must demonstrate that, for at least a year, it made reasonable efforts to return the employee to the same or an equivalent position.

When in doubt, consult an attorney. By working together as a community, we will all come out of this together.