Compliance with COVID-19 Emergency Labor and Employment Laws

On March 18, 2020 President Trump officially signed the Families First Coronavirus Response Act, which temporarily expands the coverage and eligibility of the Family Medical Leave Act, while also creating the Emergency Paid Sick Leave Act.  These Acts are required to take effect on or before April 2, 2020.  Also on March 18, 2020, New York State Governor Andrew Cuomo signed legislation on COVID-19 paid sick leave; however, unlike the federal law, the New York State law went into effect immediately.

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You can read the  federal law here.

You can read the state law here.

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The New York Law:

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The New York COVID-19 law requires all employers to provide sick leave to any employees who are subject to mandatory or precautionary revenue, are used to determine the amount of paid sick leave an employer must provide (as opposed to unpaid leave), which ranges from entirely unpaid leave to fourteen days of paid leave.  The sick leave criteria is as follows:

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• Employers with 10 or fewer employees and less than $1 million in revenue in the previous tax year must give their employees access to state paid family leave and short-term disability benefits, but are not mandated to provide paid sick leave.  Employees covered under the law nonetheless have job protection in the form of unpaid sick leave for the duration of the quarantine/isolation.

• Employers with 10 or fewer employees and greater than $1 million in revenue in the previous tax year must provide employees with at least five days of paid sick leave.

• Employers with between 11 and 99 employees must provide at least five days of paid sick leave.

• Employers with 100 or more employees must provide at least fourteen days of paid sick leave.

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Notably, an employer cannot force an employee to use any other sick leave the employee has accrued in lieu of using the sick leave afforded by the new law.  Some additional noteworthy provisions of the law are: employees who do not have symptoms and have not been diagnosed with any medical condition, and who are able to work remotely, are not entitled to leave under this law; employers may not retaliate against employees who take leave under the law, and must restore employees to their same or similar position following the leave; the state law will not provide any benefits in addition to the federal law (when it becomes effective) but will only provide benefits in instances where the state law provides coverage where the federal law does not, and instances where the state law provides greater coverage or protections than the federal law.

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Employers in the midst of dealing with various other Coronavirus related issues impacting their business must now additionally make sure they are in compliance with the state law, as well as make preparations to ensure compliance with the federal law.  Employers who fail to comply with these new laws may be liable for various employment and labor law damages.  The unprecedented nature of these laws further adds to the difficulty for employers regarding implementation and compliance. 

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The Federal Law:

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The federal law applies only to businesses with fewer than 500 employees.  The law includes two main employment protection provisions: (1) an expansion of the Family Medical Leave Act, and (2) required paid sick leave.  The paid sick leave provision mandates covered employers provide up to 80 hours of paid sick leave to covered employees at an employee's full rate of pay when an employee is unable to work due to COVID-19.  The expanded family leave provision mandates that employers provide up to 80 hours of paid leave to employees who are caring for an individual subject to quarantine or for a child whose school has been closed or whose childcare provider is unavailable, at 2/3rds of the employee's pay. 

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Various provisions of the federal law are subject to enforcement by the Department of Labor ("DOL").  In the coming days DOL may provide guidance memos regarding compliance with the provisions of the new law.  The efficacy and value of any DOL guidance remains to be seen.

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Small businesses with under 50 employees are exempt from the school closing and unavailable childcare leave requirements if these requirements would jeopardize the ability of the business to continue operating.  Although the Department of Labor has stated that they will release "clear and simple criteria" concerning the basis for application of the exemption, it nevertheless seems likely that litigation concerning interpretation of this exemption will inevitably occur.

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The Department of Labor has also stated that there will be a 30-day "non-enforcement period" in order for employers to come into compliance with the terms of the Act.  However, as of yet it appears that this non-enforcement period will only apply to actions brought by the DOL itself, and not to private actions brought by employees.