As we have discussed, there are notable gaps in the recently passed Federal Emergency Paid Sick Leave Act, including exempting employers with over 500 employees and authorizing the Secretary of Labor to grant hardship waivers, on a case-by-case basis, for those with less than 50 employees. Accordingly, some states have been working to address those gaps. For example, New York State enacted a Paid Sick Leave Law on Wednesday, March 18, 2020 that extends required paid sick leave to employers no matter the number of employees. 

Instead of exempting employers with 500 or more employees, the New York Law takes the size of employers into account only with respect to the amount of sick leave provided. However, New York’s new law notably only covers employees who are subject to mandatory or precautionary orders of quarantine or isolation by the state of New York, department of health, local board of health, or any governmental entity duly authorized to issue such an order. This means that isolation or quarantine required by employers or as a product of an employee’s self-quarantine do not meet New York’s requirements, whereas the federal law covers employees who are experiencing coronavirus symptoms and seeking a diagnosis, as well as those caring for an individual under quarantine.

The amount of paid sick leave afforded employees in New York State differs based on the employer size as follows:

• Small employers with ten (10) or fewer employees (and net income less than $1 million) are required to provide unpaid sick leave, but those employees will become immediately eligible for Paid Family Leave and Temporary Disability Insurance (TDI) benefits.
• Small employers with ten (10) or fewer employees and net income greater than $1 million are required to provide five (5) days of paid sick leave and unpaid leave until termination of quarantine or isolation, with employees immediately eligible for Paid Family Leave and Temporary Disability Insurance (TDI) benefits after the five (5) days of paid sick leave.
• Medium-sized employers with between eleven (11) and ninety-nine (99) employees, regardless of net income, must provide five (5) days of paid sick leave and unpaid leave until termination of quarantine or isolation, with employees immediately eligible for Paid Family Leave and Temporary Disability Insurance (TDI) benefits after receiving the paid sick leave.
• Large employers with one hundred (100) or more employees must provide a minimum of fourteen (14) days of paid sick leave.

For employers outside New York, the question now becomes, will my state follow New York’s lead? If the federal law does not currently apply to my business, will my state take action to change that?

State and federal governments are rapidly responding to the coronavirus and enacting new measures every day. For the most up-to-date information on new obligations and requirements employers are facing, Foley is constantly releasing the latest thought leadership on what companies can do now and how best to prepare for the future.

For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization. 

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