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U.S. sick leave laws for coronavirus take effect

Jessica C. Moller, an employment lawyer and a

Jessica C. Moller, an employment lawyer and a partner at Bond, Schoeneck & King in Garden City. Credit: Michael Paras Photography, LLC/Michael Paras

Federal laws took effect Wednesday that require small- and medium-size businesses to provide paid sick leave to employees with the coronavirus or those caring for a sick family member or looking after a child whose school is closed.

The federal Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act follow a New York State sick leave law that went into effect on March 18. The state law, rushed through because of the pandemic, also contains a general requirement that all employees receive sick leave - but that provision doesn't go into effect until September.

The laws differ in terms of who's eligible for paid leave, the benefit amount and its duration.

“The federal laws are broader and affect more people,” said Elizabeth E. Schlissel, a Rockville Centre attorney who specializes in employment law at the Tannenbaum Helpern Syracuse & Hirschtritt firm in Manhattan. "The New York law only applies if the employee is subject to mandatory or precautionary orders of quarantine or isolation issued by New York State, the New York Department of Health, a local board of health or any government entity authorized to issue such an order due to COVID-19. A doctor's order or note isn't sufficient."

She said Gov. Andrew M. Cuomo's closing of non-essential businesses and schools does not constitute an order of quarantine or isolation.

The federal laws, which apply to businesses with fewer than 500 employees and some government agencies, cover about half the U.S. workforce. The federal laws don't cover bigger employers because they are assumed to already provide paid sick leave.

“Congress left substantial gaps that it so far has failed to fill,” said Vicki Shabo, senior fellow for paid leave policy and strategy at New America, a think tank in Washington. In some respects, she said, "the federal laws also aren’t as generous in the number of paid sick days or the wage replacement as the New York law.”

She and others said employees of big retail chains, warehouses and delivery services, such as Amazon, aren’t eligible for the new  federal laws even though they are still on the job and potentially at risk of catching the coronavirus. 

“There’s a huge health and economic risk because these workers aren’t covered,” Shabo said.

Because the laws vary and provide different benefits under different circumstances, human resource experts said employers and employees should review the provisions under each law to determine what benefits apply.

“Calculate the benefits from each law to determine which, if any, applies to the employee's particular situation,” advised Jessica C. Moller, a partner at Bond, Schoeneck & King in Garden City “Despite their differences, the federal and state laws agree that employees cannot receive paid sick leave if they are able to work.”

Here’s a primer on the new laws:

FEDERAL LAWS
Who’s covered: Employees who are unable to work and are employed by businesses that are still operating and have fewer than 500 employees, along with some government agencies. Employees must have been on the payroll for at least 30 days to qualify for coronavirus-related Emergency Paid Family and Medical Leave; there is no such requirement to qualify for coronavirus-related Emergency Paid Sick Leave. Employees who have been furloughed aren’t eligible for paid leave, while employees receiving paid leave aren’t eligible for unemployment benefits.

Additional qualifications: Employees must be in quarantine or isolation for the coronavirus; have symptoms of the virus and be seeking a diagnosis; be caring for a sick family member; or looking after a child whose school was closed.

Benefits: Sick employees receive up to two weeks of emergency paid sick leave at full salary; capped at $511 per day or a total of $5,110 for the leave period. Employees caring for a sick family member or watching a minor child receive two-thirds of their salary, up to $200 per day or a maximum of $2,000 for two weeks. Employees aren’t required to use their earned paid sick days before receiving emergency paid sick leave.

Employees looking after a child whose school is closed can receive an additional 10 weeks of emergency leave at two-thirds of their salary, up to $200 per day or a maximum of $10,000 for the 10-week leave period. The leave period is shortened if the employee took paid family and medical leave prior to April 1. 

 
Employer notification: Employees may be required to notify their employer daily of their sick leave status and provide proof of their need for the leave. Employers also may require proof of the need for emergency paid family and medical leave.

Funding: Employers are fully reimbursed through federal payroll tax credits.  Freelancers and others who are self-employed also receive tax credits. 

Job protections: Employees will be able to return to work, though not always to the same job, unless their worksite is closed permanently. The protection doesn’t apply to employees taking family and medical leave who work for employers with fewer than 25 workers that eliminated jobs. 

Exemptions: Health care workers, emergency responders and employers with fewer than 50 employees may  be exempted from the new laws. 

Duration of law: April 1 through Dec. 31

More information: dol.gov/agencies/whd/pandemic

NEW YORK STATE LAW

The coronavirus-specific portion of the law applies only to employees who are subject to a government-issued quarantine or isolation. If that should occur, an employee would be eligible for sick leave, paid family leave and/or short term disability, depending on the size of the employer, and their job would be protected. 

Who's covered: All workers, whether full-time or part-time

Additional qualifications: Employees aren’t eligible if they vacationed in a foreign country with a coronavirus outbreak in violation of federal travel restrictions. They also aren’t eligible if they are asymptomatic or haven’t been diagnosed.

Benefits:

* Unpaid sick leave at employers with 10 or fewer employees and less than $1 million in 2019 profit

* Paid sick leave of up to five days at employers with 10 or fewer employees and more than $1 million in profit; same for employers with 11 to 99 employees

* Up two weeks of paid sick leave at employers with 100 or more employees and some government agencies

Funding: None for employers

More information: ny.gov/COVIDpaidsickleave or 888-364-3065

 

CLARIFICATION: Legal experts disagree on whether the state or federal laws take precedence. An earlier version of this story incorrectly implied that there was agreement. 

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