To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, April 2, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
Recently, New York State (“State”) issued guidance on its newly enacted law providing job protections, sick leave and paid family leave/disability benefits to employees who are subject to mandatory or precautionary orders of quarantine/isolation (the “quarantine leave law” or the “law”). Specifically, the State issued a Frequently Asked Questions (“FAQ”) as well as other documents providing guidance to employees regarding their rights under the law. We previously advised our clients of the requirements of the quarantine leave law in a Legal Alert released shortly after its enactment, which can be found here.
Under the quarantine leave law, employees who are subject to mandatory or precautionary orders of quarantine/isolation are eligible for paid family leave and disability benefits and, depending on the size of their employer, may also be entitled to paid sick leave (for either five (5) or fourteen (14) days) without charge to their accruals. For a detailed description of the benefits under the law, please see our Legal Alert.
Most of the information in the State’s guidance is already covered in our Legal Alert. However, the guidance does contain some important clarifications, which are set forth below:
Proof of Order of Quarantine/Isolation
The State’s guidance provides that employees can obtain copies of orders of quarantine/isolation from local health departments to substantiate that they are entitled to benefits under the quarantine leave law. Employees who cannot immediately obtain such an order from their local health departments are advised to submit documentation from a licensed medical professional to their employers stating they were treated by such medical professional and attesting[1] that they qualify for an order of quarantine/isolation. Employees should then follow up with their local health departments, which are required to provide requested copies of orders within thirty (30) days. The definitions that local health departments must utilize in determining whether or not to institute a mandatory or precautionary order of quarantine/isolation can be found here.
Sick Leave Entitlement is Based Upon Calendar Days
The State’s guidance clarifies that the amount of paid sick leave that an employee is entitled to under the quarantine leave law is based upon calendar days, not work days. Specifically, employees are entitled to receive the amount of pay that they would have otherwise received had they continued working, as scheduled, for the period of time that they are under an order of quarantine/isolation and entitled to paid sick leave under the law. For example, public employers are required to provide at least fourteen (14) days of paid sick leave to an employee who is under an order of quarantine/isolation. As such, a public employee under a fourteen (14) day order of quarantine who was scheduled to work ten (10) days during said period of quarantine would be entitled to ten (10) days of pay. This pay must be provided without charge to any of the employee’s leave accruals.
Employee Rate of Pay
As set forth above, under the quarantine leave law, employees are entitled to receive the amount of pay that they would have otherwise received had they continued working during their applicable paid sick leave period. The guidance further clarifies that employees who work a fixed schedule or are paid a salary should simply continue to receive pay for the applicable period and that “[f]or hourly, part-time, commissions salespeople, and other employees who are not paid a fixed wage, employers should determine the employee’s pay by looking at a representative period of time to set the employee’s average daily pay rate.” However, the guidance does not elaborate on how an employer should determine what constitutes a “representative period of time” under the law. Further guidance on this point is expected.
Retroactive Applicability
Significantly, the State’s guidance provides that the quarantine leave law has retroactive effect to the extent that an employee is under an order of quarantine/isolation that was issued prior to the enactment of the law. As such, an employee who was under an order of quarantine at the time of enactment of the quarantine leave law would be entitled to benefits starting from the first day of quarantine, even though that date preceded the enactment of the law.
Prior Keane & Beane Covid-19 Legal Alerts
Keane & Beane, P.C. has prepared several Legal Alerts concerning the Federal and State response to COVID-19 and the impacts on employers and local governments. Our Legal Alerts are available here.
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Public Sector Practice Group with questions regarding specific situations. We note that there are legislative developments in Congress and New York which impact each of these questions, which we are closely monitoring. Because of the frequent developments, you should consult counsel regarding specific questions. For questions on employment and labor issues contact William Kang or Lance H. Klein and on general municipal issues contact Nicholas M. Ward-Willis or Drew Victoria Gamils or any other attorney in our Public Law Sector Practice Group.
[1] The FAQ contains a detailed description of what must be contained in the attestation.
