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Employer message re COVID-19 and NY Family Medical Leave Act

Families First Coronavirus Response Act:

The Families First Coronavirus Response Act (FFCR) includes provisions which apply to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. The leave provisions will go into effect on April 2nd. New York State also expanded the Family Medical Leave Act for employees who have been subjected to mandatory or precautionary orders of quarantine or isolation due to COVID-19. The NYS FMLA expansion is effective immediately. Below are some helpful highlights from the new laws and amendments:

-Under the FFCR, Emergency Family and Medical Leave Expansion:

-Private-sector employers with fewer than 500 employees, and covered public-sector employers, must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency” to employees who have been on the payroll for 30 calendar days. This “qualifying need” is limited to circumstances where an employee is unable to work (or telework) due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

-Small businesses with fewer than 50 employees, are exempt, if the required leave would jeopardize the viability of their business.

-Reasons for Emergency Leave – Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. This is now the only qualifying need for Emergency FMLA.

New York State Paid Family Medical Leave Act Expansion:

Which applies only to employees who have been subjected to mandatory or precautionary orders of quarantine or isolation due to COVID-19 (those issued by New York State, a local health board, or any other governmental entity authorized to issue such order), and not those employees who are unable to work due to a need to care for a minor child if the child’s school / child care has been closed due to a public health emergency.

Under the NYSPFL expansion:

-Employers with 10 or fewer employees (as of Jan. 1, 2020), and net income of less than $1 million in the previous tax year, must provide unpaid sick leave until the termination of any quarantine or isolation.

-Employers with 10 or fewer employees (as of Jan. 1, 2020), and net income of more than $1 million in the previous tax year, must provide at least 5 days paid sick leave, then unpaid sick leave until the termination of any quarantine or isolation.

-Employers with 11 to 99 employees (as of Jan. 1, 2020) must provide at least 5 days paid sick leave, then unpaid sick leave until the termination of any quarantine or isolation.

-Employers with 100 or more employees (as of Jan. 1, 2020), as well as all public employers, must provide at least 14 days of paid sick leave during any order of quarantine or isolation.

Please note: In all instances, the paid/unpaid leave noted above must be provided without loss to any other accrued sick leave provided by the employer that the employee has available. Consequently, this leave will be in addition to any other employer-provided sick leave.

The law explicitly clarifies that it does not apply to an employee who meets both of the following conditions: has not been deemed asymptomatic or has not been diagnosed with any medical condition; and is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.

The FFCR is intended to coexist with the expanded benefits of the New York State FMLA amendments. The NYS FMLA expansion is not in addition to the federal benefits. The amendments to the NYS FMLA have been enacted.

Under the FFCR, Paid Leave for Emergency FMLA:

Paid Leave – The first 10 days of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer generally must pay full-time employees at ⅔ the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The new Act now limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee.

Calculating Pay for Non-Full Time Employees – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work.

Under the NYSPFL, Disability & Paid Family Leave Usage

(for employers with less than 100 employees):

The new law also allows employees who receive less than 14 days of quarantine-related paid leave (i.e. employees of employers with less than 100 employees) to use existing New York Paid Family Leave (NYPFL) and disability benefits for the remainder of the quarantine or isolation period. The law expands the coverage of “disability” to expressly cover an employee’s inability to work as a result of a quarantine or isolation order, and expands the coverage of NYPFL to expressly cover an employee’s leave from work due to such an order, or if the employee’s dependent child requires care due to a quarantine or isolation order.

Please note, the new law does not expressly permit employees of larger employers (those employing 100 or more employees) to use existing NYPFL or disability benefits. The new law also waives the standard 5-day waiting period before receiving disability benefits. Employees would be able to begin to receive benefits after their first full workday they miss due to the isolation or quarantine.

The law states that NYPFL and disability benefits will run concurrently. Employees will be able to earn a weekly maximum of $840.70 in NYPFL benefits and $2,043.95 in disability benefits, (or $150,00 annually) and the seven-day waiting period to collect disability benefits for these purposes has been eliminated. An employee’s average weekly wage would have to be at least $2,884.62, or $150,000 annually, to reach the cap.

(Please note Telecommuting Employees without Symptoms 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.)

(Disqualifying Travel: An employee who (other than for work or at the direction of their employer) traveled to a Level 2 or Level 3 CDC country, despite receiving such notice, is not entitled to the benefits under the act.)

Under the FFCR, Job restoration post Emergency FMLA leave:

Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work.

Employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.

Under NYS PFL, Job restoration post leave:

The new law includes a requirement that an employee be restored to their same position following the leave, with the same pay and other terms and conditions of employment. It does not make a distinction, like the FFCR, for employer size.

It also includes an anti-retaliation measure which prohibits employers from discharging, penalizing, or otherwise retaliating against any employee for taking this protected leave. The new law does not address situations in which the previous position no longer exists when the employee is able to return to work following quarantine or isolation.

The law also does not bar employers from taking personnel actions unrelated to “any request to use or utilization of any provided by this act.” Presumably, this acknowledges that employers may discipline or even layoff or discharge employees due to performance, economic factors, or performance.

Tax Credits under the FFCR and payment for NYS expanded FMLA:

Employers are entitled to a refundable tax credit (against their Social Security Taxes) equal to 100% of the qualified sick leave wages paid by employers for each calendar quarter in adherence with the Emergency Paid Sick Leave Act. Employers will be reimbursed if their costs for qualified sick leave or qualified family leave wages exceed the taxes they would owe. This also applies to wages paid under the Emergency Family and Medical Leave Act.

The qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member or child) for up to 10 days per employee in each calendar quarter.

The qualified family leave wages are capped at $200 per day for each individual up to $10,000 total per calendar quarter.

NYS FMLA amendments will continue to be paid for under your existing FMLA insurance.

NEXT STEPS FOR EMPLOYERS:

Given that this legislation has just been enacted and is immediately effective (FFCR effective, April 2, 2020), New York employers should consider the following:

Confirm employee headcount, taking into account part-time employees, and any planned layoffs, to determine which provisions may apply (i.e. the amount and payment status of the leave); (Please note, employers remain subject to local sick leave ordinances that meet or exceed the requirements of the newly enacted laws. )

Consider preparing a policy for display which outlines the expanded provisions of the FMLA and newly enacted benefits under the FFCR, ensuring that this policy temporarily supplements the company’s existing leave of absence, sick leave, and PTO policies.

Prepare to account for the new sick leave entitlements from a financial/accounting perspective.

Communicate the new provisions to employees who are now eligible for coronavirus-related quarantine and isolation leave, including the provisions under the FFCR related to child care.

Consider potential fluctuations in staffing levels in anticipation of employees taking advantage of these leave entitlements within days or in the near future; and

Please do not hesitate to email me at [email protected] if you have any questions.

Be safe and healthy!

Kevin Wicka