The New York State Department of Labor (“NYSDOL”) has issued guidance (the “Guidance”) and answers to frequently asked questions (“FAQs”) relating to various aspects of the newly-enacted legislation providing emergency sick leave, expanded New York Paid Family Leave (“NYPFL”) and expanded short-term disability benefits to certain employees unable to work because of COVID-19. Our previous analysis of this legislation (the “Act”) and what it means for employers can be found here: https://blogs.orrick.com/employment/2020/03/.
Below is a summary of the key new information and clarifications contained in the Guidance and FAQs.
Independently Self-Isolating Employees Are Excluded from the Act
The Guidance reminds employers that the Act provides emergency sick leave to an employee who is under an order of either mandatory or precautionary quarantine or isolation issued by the State of New York, New York State Department of Health, local Board of Health or any government entity authorized to issue such an order.
However, the FAQs clarify that an employee who independently decides to self-isolate or quarantine (in the absence of a mandatory or precautionary order from an authorized government entity) is not eligible to use emergency sick leave under the Act. As discussed below, eligible employees must also submit a copy of any such order before utilizing the NYPFL or short-term disability benefits.
Duration and Retroactive Application of Emergency Sick Leave
The FAQs state that the number of paid days is calendar days, and the pay required should represent the amount of pay that the employee would have otherwise received for the 5 or 14 calendar day period of the applicable leave.
The FAQs also explain that an eligible employee who is currently under a mandatory or precautionary order of quarantine or isolation that was issued prior to the enactment of the Act (March 18, 2020) is still entitled to use emergency sick leave under the Act. In other words, an eligible employee who began his/her period of quarantine or isolation prior to March 18, 2020 and is still under such quarantine or isolation may apply for his/her emergency sick leave entitlement retroactively to cover the period commencing on March 18, 2020.
Required Documentation and Submission Process
Both the Guidance and FAQs provide important information regarding the documentation eligible employees must submit in order to utilize benefits provided by the Act.
No documentation required to use emergency sick leave
The NYSDOL clarifies that eligible employees do not need to submit documentation before using emergency sick leave.
Documentation required to use NYPFL and/or short-term disability benefits
After an employee exhausts his/her emergency paid sick leave pursuant to the Act, the employee will be eligible to apply for NYPFL benefits and short-term disability benefits for the remaining period of the order of quarantine or isolation. To apply for NYPFL benefits and/or short-term disability benefits under the Act, all eligible employees must submit:
- a completed “Request for Paid Family Leave” form (“Form PFL-1”); and
- a copy of the mandatory or precautionary order of quarantine or isolation.
In addition to the above, an employee requesting NYPFL and/or short-term disability benefits for himself/herself must also complete a form titled “Request for COVID-19 Quarantine DB/PFL.”
Similarly, an employee requesting NYPFL benefits to care for his/her child, who is subject to a quarantine or isolation order, must complete a form titled “Request for COVID-19 Quarantine PFL – Child.”
A link to the full set of forms that an eligible employee seeking NYPFL and/or short-term disability benefits must complete (including the Form PFL-1) are located here:
- Employee requesting NYPFL/short-term disability benefits for himself/herself: http://docs.paidfamilyleave.ny
- Employee requesting NYPFL benefits to care for his/her child: http://docs.paidfamilyleave.ny
After completing the “employee sections” of the appropriate forms, the eligible employee must submit the forms to his/her employer.
Employers must then complete the “employer sections” of the forms, which include filling in the following information: (1) the employee’s average weekly wage, and (2) an attestation that the employee has used any quarantine paid sick time and is not able to work remotely.
Employers are required to return the completed forms to the employee within three business days. The employee must then submit the completed forms, as well as the order of quarantine or isolation, to the employer’s disability and paid family leave insurance carrier. If the employer fails to return the completed form within three business days, the employee may proceed with submitting the forms to the insurance carrier.
NY School Closures Do Not Guarantee Entitlement to NYPFL Benefits
The FAQs also clarify when an eligible employee may utilize NYPFL benefits to care for his/her child who is home because of a school closure. Specifically, the FAQs state that if a child’s school is closed due to a mandatory or precautionary order of quarantine or isolation issued by the State, department of health, local board of health, or government entity, the employee may be eligible to utilize NYPFL benefits. However, if a child’s school is closed for preventative social distancing, the FAQs suggest that the employee check with his/her employer to see if there are other benefits he/she may use instead.