Contributed by Patricia Mulligan, Esq.
Did You Know…
New York State Paid Family Leave Law
What are an employer’s obligations under the NYSPFLL regarding workers who are on a mandatory or precautionary quarantine order due to COVID-19?
- Employer’s with 10 or fewer employees, who have a net income greater than $1,000,000.00 last year must provide their employees at least 5 days of paid sick leave, with compensation for the duration of the quarantine paid through the existing Paid Family Leave and Disability benefits policies, up to $2,884.62/week. The employee has guaranteed job protection for the duration of the order;
- If the employer has a net income of less than $1,000,000.00, then you do not have to provide paid sick leave. The employee is entitled to compensation for the duration of the quarantine through the existing Paid Family Leave and Disability benefits policies, up to $2,884.62/week. The employee gets guaranteed job protection for the duration of the order;
- Employers with 11-99 employees also must provide at least 5 days of paid sick leave, regardless of net income;
- Employers with 100 or more employees must provide at least 14 days of paid sick leave before PFL and DBL kicks in.
*IN every case, an employer must let employees know what they are entitled to and help them apply, as needed, for PFL and DBL benefits
Families First Coronavirus Response Act (“FFCRA”)
The effective of the FFCRA is April 1, 2020.
The FFCRA generally provides that employees of covered employers are eligible for one of the following:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is (1) unable to work or telework because the employee is quarantined (due to a federal, state, or local government order or the advice of a health care provider) and/or (2) experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is (1) unable to work or telework while caring for an individual subject to quarantine (due to a federal, state, or local government order or the advice of a health care provider), (2) unable to work or telework because of a need to care for a child (either a minor child under 18 years of age or an adult child who has a mental or physical disability and is incapable of self-care because of that disability) whose school or child care provider is closed for reasons related to COVID-19, and/or (3) experiencing a substantially similar condition as specified by the secretary of health and human services, in consultation with the secretaries of the treasury and labor; and
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee who has been employed for at least 30 calendar days is unable to work or telework due to a need to care for a child whose school or child care provider is closed for reasons related to COVID-19.
Private employers with fewer than 500 employees are covered by the FFCRA.
REMEDIES FOR VIOLATION OF THE FFCRA
- Actual Damages
- Liquidated Damages
- Attorney’s fees, among others
- Unlike with most discrimination claims, individual managers can be sued personally under the FFCRA.
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Consult your labor/employment counsel to assess the applicability of the exemption.
THE AMERICANS WITH DISABILITIES ACT AND THE FAMILY MEDICAL LEAVE ACT
The ADA applies to employers with 15 or more employees.
An employer may be liable for discrimination under the ADA if:
- The employer discriminates because of a disability;
- The employer discriminates because of a record or history of a disability, or
- The employer discriminates because an employee is regarded as being disabled.
Employers may also be liable for failing to provide a reasonable accommodation to an employee with a disability, such as, allowing continued remote work for an employee with an underlying medical condition. Employers should consult labor/employment counsel to evaluate issues as they arise in the workplace prior to taking any adverse employment action.
The Family and Medical Leave Act applies to employers with 50 or more employees within a 75-mile radius. The FFCRA temporarily amended the FMLA to provide expanded coverage as described above.
WAGE & HOUR CLAIMS
For employers with employees working remotely during the pandemic, particular care must be given to:
- Ensuring that you have accurate WEEKLY records of employee hours (non-exempt workers). For example, if your employees punched a time clock, or used some other on-premise method of tracking employee time, you must create a substitute system, which must include ALL hours worked and record lunch breaks;
- For furloughed exempt employees, working, for example, one week on and one week off, if the employee works just 1 day during a workweek, under the Fair Labor Standards Act, the employee would typically be entitled to a full week’s pay;
- If an exempt employee’s duties have been modified during the pandemic, employers must ensure that the modified duties meet the criteria for exempt status, and
- If an employer is screening for COVID-19 symptoms before workers enter the workplace, the time waiting in line and being screened may be compensable.
Finally, employers are well-advised to follow Centers for Disease Control and Prevention (“CDC”) & OSHA guidance when reopening the workplace.
*** The laws are changing rapidly during the Covid-19 pandemic. Nothing herein should be construed as legal advice. Instead, be sure to consult your labor/employment counsel for advice regarding the issues arising in your workplace.
The foregoing summary of COVID-19 laws relevant to today’s workplace is not intended to be exhaustive. Consult your labor/employment counsel for advice regarding issues arising in your workplace.
Patricia M. Mulligan, Esq.
120 Bloomingdale Road, Ste. 100
White Plains, New York 10605
Tel (914) 328-3300
Fax (914) 328-3307
Website: www.mulliganlawny.com
