Paid Leave Is Being Reshaped by Coronavirus

The alarming spread of Covid-19 is changing all of our lives in new and troubling ways. Social distancing, closure of all entertainment options, and mandatory work-from-home orders are affecting every single New Yorker. Given that we are in the middle of a pandemic with no end date, cooperative and condominium boards need to know or be refreshed on what rights their employees can exercise in terms of sick leave to protect themselves and their families. By doing so, they will help the health and safety of building residents by “flattening the curve” of potential infections. Please note that, given the rapid pace of events, my overview is current as of this article’s posting.

New York City Paid Sick Leave
The city enacted its paid sick leave law in 2014. It covers full-time, temporary and per diem workers, and it states that employers with five or more employees must provide paid sick leave. Employers with four or fewer employees must also provide sick leave, but it can be unpaid.

Employers must provide a minimum of 40 hours of sick leave per year. Unused sick leave (of up to 40 hours) can be accrued and must be carried over into the next year. Even if a business is located outside of New York City, it must provide sick leave to workers who work at least 80 hours in the city.

Finally, if a worker takes more than three days off consecutively, an employer can require that an employee provide documentation from a licensed health care provider. That has to be provided by the employee within seven days of returning to work. As it stands, the licensed health provider does not have to state the nature of the employee’s illness. Given Covid-19’s high rate of infectiousness, this requirement may change.

New York State Proposed Paid Sick Leave Law
In January, Gov. Andrew Cuomo proposed a paid sick leave law that would cover all New York State employers. Last week, he announced that he was sending it immediately to the State Legislature and that it would now include language relating to workers who must quarantine themselves due to Covid-19. Under the proposed legislation, employers with 5 to 99 employees would have to provide 5 days of paid sick leave. Employers with 100 or more employees would have to provide 7 days of paid sick leave. A business with 4 or fewer employees would have to provide 5 days of unpaid sick leave. This legislation has not yet been enacted into law.

Federal Emergency Coronavirus Bill
The U.S. House of Representatives has passed an Emergency Coronavirus Bill and sent it to the Senate for approval. As written, the bill states that employers with 500 or fewer employees would have to provide two weeks of paid sick leave and up to three months of paid family and medical leave. Only parents caring for children whose schools have closed will be eligible for up to three months of paid leave. Pay for two weeks of sick leave will be at 100 percent of an employee’s salary, up to $511 per day. Any paid family or medical leave after that would be at up to 67 percent of the employee’s salary, up to $200 per day.

Restrictions abound, however. The bill would limit these benefits to workers who are sick with coronavirus, subject to a quarantine, or caring for a family member with coronavirus. Further, a business with fewer than 50 employees may petition to be exempt from providing such paid leave if it is able to show that doing so “would jeopardize the viability of the business as a going concern.”

Senate majority leader Mitch McConnell, Republican of Kentucky, said Tuesday the Senate will not pass the coronavirus bill approved by the House unless it includes “significant and bold new steps.”

In short, the status of paid leave is currently in flux. Expect more rule changes in the near future.

Andrew I. Bart is an attorney at Borah Goldstein Altschuler Nahins & Goidel.