100% Workforce Reduction and Paid Leave in New York
You Oughtta’ Know...
100% Workforce Reduction
and Paid Leave in New York
As of 8 o’clock tonight, March 22, all businesses in New York are ordered by the Governor to eliminate all in-person non-essential workforces.
Who and what is considered essential? How do you get a waiver if you think you qualify for one but are not listed as an essential business? These questions and more are being handled by the State’s Economic Development Corporation and their answers can be found here.
The Governor’s “pause” order only applies to workers who can not work remotely. If a worker can do the essential functions of their job from home, they should be set up to do so and not be put on leave. Employees who are symptomatic or diagnosed are excused from this work requirement. COVID-19 leave time must be on top of leave to which the employee is already entitled.
New Laws This Week
So, what happened? First, as expected, the State passed a law this week – effective immediately – impacting every workplace in New York.
Any employee who is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 is entitled to some form of compensation for the duration of that order. This includes people who need the leave time to care for a minor child who is out of school due to the closure.
The law also provides job protection for all workers who are required to take such leave, and prohibits retaliation against workers who use the leave.
The good news is that the State did use Paid Family Leave and Disability, policies for which both employers and employees already pay, to cover some of this time and its cost.
The extent of the benefit mandated varies by the size of the business:
Second, Congress passed a law providing emergency relief for workers. The Federal law offers less than the State law and doesn’t go into effect until April 2. It also only applies to businesses with fewer than 500 employees. The Federal law requires employers to provide two weeks of paid sick leave up to $511 per day, followed by 12 weeks of paid family leave at 67% of an employee’s salary up to $200 per day.
Employers will be reimbursed for the cost of this time through tax deductions and tax credits.
The State law specifically says that the amounts received by workers under the Federal law will work to reduce the amount due under the State provisions. In other words, employees will get the difference between the two from the State.
What This Means
This means that, while all businesses have some degree of responsibility for coming up with paid leave payroll right away, most must prepare to offer indefinite if unpaid, leave to its entire workforce.
Some businesses have already had to make the tough decision to close their doors. If you must go that route remember New York requires certain forms and notifications be made when terminating workers, including notice of the employee’s COBRA and UI rights. Right now, the State is waving the waiting period for benefits so most people will be eligible immediately.
Unanswered Questions
State authorities are working vigorously to turn out regulations. Several questions employers and employees alike need answered include:
Do the employee counts to determine benefits include the national workforce, or only workers in New York State?
If two parents are able to work from home but they have minor children, can they both collect leave benefits?
With the Governor’s signature on March 18th the State law went into effect. The Federal law doesn’t go into effect until April 2 – after New York employers have already paid for as much as 14 days of leave.
How will the different effective dates affect what benefits are owed? Will it include employers already paying benefits due to their State laws? Will employers be responsible for additional benefits under the Federal law after their employees are already being covered by Paid Family and Disability policies?
What will be the Federal waiver provisions, processes and timeline?
While watching the law evolve this quickly is an interesting academic exercise, it is a Herculean task for the average business – especially at a time like this. You can find answers to some of the most common questions, here:
https://www.governor.ny.gov/paid-sick-leave-covid-19-impacted-new- yorkers/emergency-covid-19-paid-sick-leave
How this is playing out in your remote boardrooms and offices, though, is something we are watching and ready to help with. You can reach me at rgold@abramslaw.com if we can help you navigate this shifting landscape. Stay healthy.
