March 30, 2020
The U.S. response to the COVID-19 outbreak has included rapid and dramatic changes in local, state and federal employment laws. Some New York employers are struggling to understand the new paid leave laws while others are facing the decision to conduct mass layoffs. This article will provide New York employers with a roadmap of important new COVID-19 developments, including how to determine whether their business operations qualify as “essential,” how to respond when their employees need sick leave for themselves or family members, and how to restructure their workforce amid a landscape of changing requirements.
Which New York Businesses are “Essential”?
As of March 22, 2019, the “New York State on Pause” Executive Order directed all New York “non-essential” businesses to cease in-office personnel functions and “utilize to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize.” In a series of Executive Orders, the state has carved out 12 categories of “essential businesses” that are exempt from the in-person restrictions and may continue to operate on-site. New York employers can find the updated comprehensive list of essential businesses here.
If a New York employer believes its work is essential but not specifically listed as such, it may complete a one-page application requesting that the state designate it as essential. An employer should apply only if it believes “it is in the best interests of New York State to have [its] business’s workforce continue at full capacity in order to properly respond to the COVID-19 emergency.”
Employers (and employees) who may be tempted to ignore the governor’s executive order and continue in-office work should remember that this order comes with penalties. Local police and fire personnel have been tasked with visiting worksites to monitor compliance. Failure to comply could lead to civil penalties of up to $2,000 per violation ($5,000 for repeat offenders) and injunctive relief. The governor promises enforcement in successive continuations of his order and New York Attorney General Letitia James encourages workers to file complaints against their employer for not complying with the governor’s directives.
Employers, whether essential or not, may want to consider implementing new policies, such as a telecommuting/remote work policy, a policy on potential exposure to COVID-19, a telecommuting equipment assignment and usage policy, protocols around proprietary and confidential information, and/or privacy policies depending on the nature of the work the employee is conducting at home.
New York Employees Who Are Sick
New York COVID-19 Sick Leave Law
On March 18, 2020, New York adopted new legislation that provides New York employees with paid sick leave in response to the COVID-19 outbreak.1 This law applies to all employers with any employees in New York. An employee is eligible for paid time off if they present to their employer a “mandatory or precautionary order of quarantine or isolation.” Such an order is one issued by the “state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” The New York State Department of Health has issued guidance to confirm that only those employees who have been exposed to COVID-19 in some fashion, or traveled to a high-risk area, will be allowed leave under the law.
An employee will receive such an order if their health care provider notifies the infection control personnel at New York State or a local health department that the employee is a “Patient Under Investigation” for COVID-19. This may be due to the employee’s own condition or that of a member of the employee’s household. The local health department then issues an order of quarantine after receiving this notification.2 Importantly, if an employee has received only a quarantine or isolation recommendation from their own health care provider, but not a quarantine or isolation order from the health department, this leave is not available.
Leave benefits available to the employee depend on the size and net income of their employer. For example, businesses with 11-99 employees as of 1/1/2020 that had a net annual income greater than $1 million last year must provide employees with job protection for the duration of the order of quarantine or isolation and at least five (5) days of paid sick leave. See table, below, for further details.
Compliments of Littler Mendelson – a member of the EACCNY.