Coronavirus (COVID-19): New York Compliance Concerns
Author: XpertHR Editorial Team
NOTE: A New York federal district court ruling struck down the following portions of the regulations implementing the Families First Coronavirus Response Act (FFCRA): the work-availability requirement; the definition of health care provider; restrictions on intermittent leave; and employee documentation requirements. New York v. United States DOL, +2020 US Dist. LEXIS 137116.
The geographic scope of the court's ruling remains unclear. Further, whether the Department of Labor will appeal this decision, issue revised guidance or publish new rules to reflect the court decision remains unknown. XpertHR will continue to monitor any developments in connection with the court ruling and update, if applicable.
New York declared a state of emergency extending from March 7, 2020, until September 7, 2020, in light of the novel coronavirus (COVID-19) outbreak. All nonessential businesses statewide were subsequently ordered to reduce their in-person workforce by 100% at any work locations, and then were ordered to close by the evening of March 22.
New York has taken steps to assist employees affected by COVID-19, including by providing paid sick leave and broadening access to health insurance benefits.
Such protections remain in effect even as the state begins to reopen in phases.
In acting to protect their employees, employers must take care to ensure that their response to the coronavirus complies with applicable state and local laws and directives, including:
- Paid sick leave;
- Paid family leave and temporary disability benefits;
- Safety and health;
- Health insurance;
- Unemployment benefits; and
- Workers' compensation.
Paid Leave Benefits
New York State passed emergency legislation, effective March 18, 2020, that provides paid sick leave and job protection to employees if they or their minor dependent children are subject to a mandatory or precautionary quarantine or isolation order issued by the state, the Department of Health, a local board of health or any other authorized government entity due to COVID-19, until the termination of the order.
Whether an employer must provide paid or unpaid leave under the COVID-19 Sick Leave Law depends on the employer's size and net income. Employees taking unpaid sick leave may be eligible for wage replacement benefits under the state's established paid family leave (PFL) and temporary disability benefits (TDB) laws, neither of which previously covered quarantine-related leave.
However, under Executive Order 202.45, signed June 26, 2020, employees are not eligible for paid sick leave or any other paid benefits under the COVID-19 Sick Leave Law if, after June 25, 2020, they voluntarily travel to a high-risk state (a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven-day rolling average). The order does not apply if the employee travels for work or at their employer's direction.
Employees who work for small employers (employers with 10 or fewer employees) with a business net annual income less than $1 million are entitled to unpaid sick leave for the entire quarantine/isolation period, but may apply for PFL and TDB.
Employees who work for small employers with a business net annual income more than $1 million or for medium employers (employers with 11-99 employees) are entitled to five calendar days of paid sick leave. After that, they are entitled to unpaid leave for the remainder of the quarantine/isolation period, during which they may apply for PFL and TDB.
Employees who work for large employers (employers with 100 or more employees) are entitled to up to 14 calendar days of paid sick leave.
The seven-day waiting period for TDB has been waived for quarantine/isolation leave. There is no waiting period for PFL for any reason.
At the end of leave, the employer must reinstate the employee to the position held prior to taking leave, with the same pay and other term and conditions of employment. The law prohibits an employer from terminating, threatening, penalizing or in any manner discriminating or retaliating against an employee who took leave.
The law does not apply to employees who are asymptomatic or have not yet been diagnosed with any medical condition and who are physically able to work while under a mandatory or precautionary quarantine or isolation order, whether through remote access or other similar means.
Such leave must be provided without loss of an employee's accrued sick leave.
The New York State Department of Health and Department of Labor issued joint guidance on the application of the COVID-19 Sick Leave Law to health care employees. Heath care employees will be deemed to be subject to a mandatory isolation order from the Department of Health, and thus covered by the law, if: 1) their employer prohibits them from working because it suspects or confirms that they have been exposed to, have exhibited symptoms of and/or have been diagnosed with COVID-19; or 2) they must not report to work because they have tested positive for and/or are symptomatic for COVID-19. If a staffing shortage exists, an employer may require a health care employee to return to work prior to the end of the 14-day isolation period under certain circumstances. Subsequent joint guidance clarifies the circumstances under which a health care employee must not report to work. The supplemental guidance also provides that, after the first mandatory quarantine or isolation order ends, health care employees may qualify for paid sick leave for up to two more orders of quarantine or isolation if they test positive for COVID-19.
In New York City, the Commissioner of Health and Mental Hygiene signed an Order creating a process for New York City residents to receive the documentation necessary to claim paid sick leave from their employer under the state's COVID-19 Sick Leave Law. The Order applies to employees who currently meet or previously met the qualifications for mandatory isolation related to COVID-19.
For more detailed information on the COVID-19 Sick Leave Law, see Coronavirus (COVID-19): State and Local Leave Laws.
Employers are reminded that they must provide employees with TDI information by:
- Posting the TDI notice; and
- Providing a written statement of TDI rights when an employee has been absent from work for more than seven consecutive days.
An employer should also consider including fuller details of employees' TDI rights in its employee handbook.
Notice requirements under the PFL law include:
- Posting a notice provided by the insurance company;
- Maintaining written guidance on PFL in an employee handbook or other document; and
- Providing a written statement of PFL rights when an employee has been absent from work for more than seven consecutive days.
Local Leave Laws
Laws already exist in New York City and Westchester County that allow employees to take paid sick leave when their workplace or their children's school or care providers close by order of a public official because of a public health emergency, in addition to leave for their own or their family members' illness or need for medical care. Westchester County's law also covers when the employee's or a family member's presence in the community may jeopardize the health of others, as determined by public health authorities, because of exposure to a communicable disease, whether or not the employee or family member has actually contracted the disease.
Employers in New York City and Westchester County should ensure employees know their rights to paid sick leave by checking that:
- Paid sick leave policies are current and are accessible to employees;
- Required posters under applicable paid sick leave laws are conspicuously displayed where employees can see them; and
- New hires receive applicable sick leave notices.
Safety and Health
Under an executive order signed by Governor Andrew Cuomo, effective April 15, 2020, any employees of essential businesses or entities who are present in the workplace must wear face coverings when in direct contact with customers or members of the public. Employers are required to provide the face coverings to their employees, at the employer's expense.
New York State made a special enrollment period available during which eligible individuals could enroll in insurance coverage through NY State of Health (the state's official health plan Marketplace) or directly through insurers, so that individuals do not avoid seeking COVID-19 testing or medical care for fear of cost. Individuals could enroll in a qualified health plan between March 16, 2020, and April 15, 2020, for coverage beginning April 1, 2020.
In addition, the Department of Financial Services (DFS) adopted an emergency regulation to help ensure that cost-sharing is not a barrier to testing for COVID-19. The regulation prohibits New York health insurers from imposing cost-sharing (e.g., deductibles, co-pays, co-insurance) on emergency room visits and on in-network provider office visits, urgent care center visits, telehealth visits and laboratory tests when the purpose of the visit or test is to diagnose COVID-19.
Another DFS emergency regulation requires insurance companies to waive cost-sharing for in-network telehealth visits, whether or not related to COVID-19. This measure helps ensure that individuals can receive the health care services they need, even if they are unable to get to their doctor's office or do not want to risk exposure to the coronavirus.
The New York State Worker Adjustment and Retraining Notification Act (NYWARN Act) requires certain employers to provide 90 days' advance written notice of a mass layoff, plant closing or relocation.
Businesses that are facing rapid and unexpected closures due to the coronavirus must provide notice a soon as possible and identify the circumstances that required the closure. The NYWARN Act's 90-day notice requirement has not been suspended because the Act already recognizes that businesses cannot predict sudden and unexpected circumstances beyond an employer's control, such as government-mandated closures, the loss of the workforce due to school closings or other specific circumstances due to the coronavirus pandemic.
If an employer closes due to an unexpected event, it must provide as much information as possible to the New York State Department of Labor (NYSDOL) about the circumstances of the closure so that the NYSDOL can determine if an exception to the NYWARN Act applies.
Employees may be entitled to unemployment insurance (UI) benefits if they are laid off due to a lack of work caused by the coronavirus.
Governor Cuomo signed an executive order waiving the seven-day waiting period for UI benefits for people who are out of work due to COVID-19 closures or quarantines.
An employer can apply for the UI Shared Work program, which allows the employer to avoid layoffs. Employees (including full-time, part-time and seasonal employees) can receive partial UI benefits while working reduced hours.
Employers must provide employees with relevant UI information by:
- Posting a Notice to Employees in an area where it may be easily seen by employees; and
- Providing written notice to terminated employees of:
- The employer's name and New York State employer registration number;
- The mailing address where payroll records are kept; and
- Instructions to employees that they present the notice when filing an unemployment benefits claim.
Until further notice, the WCB will conduct hearings remotely. Additionally, the Board will take into consideration the effects of the coronavirus if, for example, an employee fails to attend an independent medical examination or does not submit up-to-date medical evidence in a timely manner. Reasonable excuses include the physician not being available or the employee being quarantined due to COVID-19.
Make sure employees know their workers' compensation rights by displaying the workers' compensation poster provided by the insurance carrier.