New York COVID and Employment Law

Under Governor Cuomo’s “New York State on PAUSE” order only businesses deemed essential are permitted to stay open. The result was that most non-essential businesses closed, schools closed, and people were generally required to stay home. However, some non-essential businesses have been able to continue to operate with employees working from home. This situation has led to many concerns related to being laid off or furloughed, working remotely, and being unable to work because of lack of childcare, as well as safety concerns for those providing essential services. To address the unique employment issues associated with COVID-19, New York State and the federal government instituted several new policies.

New York’s Paid Family Leave law provides that employees get both time off and wage replacement benefits if they need to bond with a new child, care for a sick family member, or provide assistance when a family member is deployed. In light of the COVID-19 crisis, benefits have been expanded. If you are required by the New York State Department of Health or any other authorized government entity to isolate or quarantine, you may be entitled to paid leave. The amount of paid leave and the length of it depends on the type of employer.

If as of January 1, 2020 your employer has 10 or fewer employees and your employer made more than $1 million in 2019, or if your employer has between 11-99 employees, you are entitled to 5 days of paid sick leave, plus you may also be eligible for compensation for the remainder of your quarantine by applying for Paid Family Leave and disability benefits. If as of January 1, 2020 your employer has 100 or more employees, you are entitled to 14 days of paid sick leave for a COVID-19-related quarantine.

If you work for a public employer of any size such as a school, county, or county, you are entitled to at least 14 days of paid sick leave.

The federal Families First Coronavirus Response Act (FFCRA) provides a new sick and family leave programs in response to the coronavirus crisis only applies to companies with fewer than 500 employees and to public agencies.

• Emergency sick leave. The amount you will get paid under the emergency sick leave provisions depends on whether you are sick or someone else is sick. If you are sick, you will receive your full pay up $511/day for up to 2 weeks (80 hours) or 2/3 of pay or up to $200/day ($2,000 max). To qualify, one of the three following must apply: o You must have been required by the federal, state, or local government to isolate or quarantine due to COVID-19
  • You must have been told to self-quarantine by a health care provider due to COVID-19
  • You must have symptoms of COVID-19 and are pursuing a medical diagnosis

  If you need to take time off to care for a sick family member or a child whose school is closed you would qualify to receive 2/3 of your pay, up to $200 per day. To qualify, one of the three following must apply:

  • You must need to take care of someone under quarantine or isolation order
  • You must need to take care of your child because school is closed or because your childcare provider is unavailable as a result of COVID-19
• Family and Medical Leave Act (FMLA) Expansion. Under the extended FMLA leave, you can receive up to 10 weeks paid leave, not exceeding $200/day (maximum $10,000). However, the first 10 days of leave may be unpaid. You are eligible for extended leave if you cannot work either in-person or remotely due to having to care for a child who is under 18 because their school has closed or because child care is not available because of COVID-19.

Particularly if you perform an essential service, you are concerned about remaining safe in your workplace. The Occupational Safety and Health Administration (OSHA) issued safety standards that business that perform essential services, as well as all business, must follow. The standards that are particularly relevant to COVID-19 related safety concerns include:

• Personal Protective Equipment (PPE) standards. OSHA requires that when job hazards warrant it, workers must wear gloves, eye and face protection, and respiratory protection. Because of COVID-19, businesses that provide essential services are required to take additional measures to ensure the safety of their employees by providing PPE where PPE may not have been necessary prior to the pandemic.
• Hazard-free workplace. OSHA has a general duty clause that requires that employers make sure that workplaces are free from hazards that are likely to lead to serious physical harm or death. In addition to making sure that employees have PPE, this provision may also require employers to take extra care to keep workplaces clean by frequently sanitizing high use surfaces.

If your job is not essential, your employer cannot require you to go to work. In order to continue to operate, serve customers, and bring in revenue, many businesses are choosing to permit employees to work from home either full time or with reduced hours. As businesses start to reopen in phases, you may wish to continue to work from home. While there are no federal or state mandates that requires employers to offer this option, if you have an underlying disability that puts you at greater risk for become seriously ill with COVID-19, under the Americans with Disabilities Act you may have the right to work from home as an accommodation. If you are an essential worker, you are required to go to work.

There are some businesses that are not following the special rules that were put in place to protect workers and their families and help slow the spread of COVID-19. The New York Department of Labor wants to know about violations and has set up a system to report violations of COVID-19 regulations. The DOL encourages you to make a complaint if:

• Your employer forces you to work even though your business is non-essential and it has not yet been permitted to reopen
• You know about a business that is non-essential, has not yet been permitted to reopen, and is operating
• You are being forced to work for an essential business, but you do not perform an essential function
• Your employer is making you report to a worksite when your job could be performed from home
• Your employer is not following health and safety mandates such as sanitizing surfaces
• You are particularly frightened because you are in a vulnerable class—you are over 70 and/or you have an underlying illness
• Your employer has failed to pay you wages owed for hours worked, earned sick pay, paid time off, or Paid Family Leave
• Your employer has threatened or fired you for reasons related to COVID-19
• Your employer is forcing you to work when you are sick

Note that it is against the law for employers to fire or otherwise retaliate against employees who report COVID-19 regulation violations. If you report that your employer actually violated a law and as a result created a substantial danger to public health, you are protected from retaliation under New York Labor Law § 740.

The special COVID-related rules and programs related to employment are subject to change at any time, particularly as Governor Cuomo implements his strategy to reopen New York State. Check back to this page for updates.