Employee Sick Leave
Q: What exactly is this new law?
A: Last night, Governor Cuomo signed into law a bill that provides paid sick leave and job protection for certain workers during the COVID-19 crisis.
Last Updated: March 20, 2020
Q: Does this law apply across the entire country?
A: No. This new law only applies to those businesses in the state of New York.
Last Updated: March 20, 2020
Q: What employees are covered by this new law?
A: In order to qualify for this law’s protections, employees must have been placed under a mandatory or precautionary order of quarantine or isolation issued by New York State or a local government entity.
Last Updated: March 20, 2020
Q: What does “mandatory or precautionary order of quarantine or isolation” mean?
A: The law defines this as “a mandatory or precautionary order of quarantine or isolation 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.”
Last Updated: March 20, 2020
Q: Are we currently in this “mandatory or precautionary order of quarantine or isolation”?
A: For the purposes of this law and as of today, March 19, 2020, the entire city is not currently under any such order. This law was put into effect to cover individual employees that have been tested for COVID-19 and have been put into a mandatory or precautionary quarantine by the proper authorities.
Last Updated: March 20, 2020
Q: What does this all mean?
A: This means that if an employee is mandated to be quarantined by any of these entities, that employee can be eligible for certain benefits, such as guaranteed paid sick leave and job protection.
Last Updated: March 20, 2020
Q: What benefits are my employees entitled to under this new law?
A: This depends on many factors, including the size of the employer as of January 1, 2020 and its net income for the prior tax year. The benefits are broken down as follows:
- Employers with 1-10 employees as of 1/1/2020 – Employee will receive unpaid sick days and the ability to immediately qualify for paid family leave and temporary disability benefits, plus full job protection.
- Employers with 11-99 employees and small employers (1-10 employees) with a net income of $1 million a year – Employee will receive five paid sick days and the ability immediately thereafter to qualify for paid family leave and temporary disability benefits, plus full job protection.
- Employers with 100+ employees and public employees – Employee will receive paid sick days for the entirety of the quarantine (up to 14 days), plus full job protection.
Last Updated: March 20, 2020
Q: What does “full job protection” mean?
A: This means that when the employee returns to work after the quarantine, he or she shall be given back his or her position that was held prior to the quarantine order with the same pay and other terms and conditions of employment. The employer shall not be permitted to discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee that has taken leave pursuant to this law.
Last Updated: March 20, 2020
Q: What does “net income” mean?
A: While there is no further guidance in the law itself, net income typically refers to a company’s total earnings after paying expenses, taxes, depreciation, and amortization.
Last Updated: March 20, 2020
Q: Will the State pay for this additional sick leave?
A: As of now, the answer to this is no. These paid benefits to any affected employee would be the responsibility of the employer.
Last Updated: March 20, 2020
Q: What if my employee just got back from a country with high levels of COVID-19 cases?
A: If the employee is subject to the quarantine order because he or she has just returned from a country with a CDC travel health notice of two or three, that employee would not get these benefits. However, the employee would qualify in the event that the travel was taken as a part of the employee’s employment or at the direction of the employer.
Last Updated: March 20, 2020
Q: What if my employee has no symptoms?
A: If the employee is deemed to be asymptomatic or has yet to be diagnosed with any medical condition and is physically able to work while under the quarantine order (whether through remote access or other similar means), then the employee is not entitled to these benefits.
Last Updated: March 20, 2020
Q: What about sick leave that the employee has accrued?
A: These benefits are on top of any sick leave that the employee has already accrued. The employee shall not lose any accrued sick leave.
Last Updated: March 20, 2020
Q: What if I have already terminated my employees?
A: If your employees were terminated prior to this law taking effect, you will not be responsible for its requirements.
Last Updated: March 20, 2020
Q: How would a “stay at home” or “shelter in place” order affect me?
A: If the city or state of New York were to issue a “stay at home” or “shelter in place’ order, it should not have any differing effect on the interpretation of this law. This law is meant to apply to those employees that have tested positive (or presumed positive) and cannot go to work because they have been ordered to quarantine.
Last Updated: March 20, 2020
Other Employees Information
Employee and Hygiene + Sanitation
Q: Do we need to pay employees who are being quarantined, self-monitoring, or caring for a family member with COVID-19?
In short, the answer is maybe. No government rule or edict has been implemented that should change your normal day-to-day employment practices. Under the New York City Safe and Sick Leave Act, all NYC employees working 30+ hours/week are entitled to a maximum of 40 hours of paid sick leave in any given calendar year. Employees may be entitled to their paid leave automatically upon their hiring or they may be accrued paid leave based on hours worked. New York State currently does not require you to pay your employees for any time off, whether for sick leave or vacation.
Depending on the nature of the job, some employees may be able to work remotely. Employees that choose to work remotely should continue to be paid for any and all hours worked. However, given that most of the hospitality workforce cannot work from home, you are not required to make any changes to your regular payroll practices.
Some employees may be entitled to benefits under the New York Paid Family Leave Act. These benefits are available to any employees caring for a family member with COVID-19. After an employee uses up their paid leave, your obligations as an employer under PFL will depend on the individual’s employment classification (exempt v. non-exempt) and whether you have asked the individual not to report to work. If you find yourself in a situation where you are unsure about how to proceed, please contact Lee or any member of the firm.
Last Update: March 12, 2020
Q: Can I ask an employee to stay home if I believe they have contracted — or have been exposed to — COVID-19?
If an employee, regardless of travel history, has symptoms of acute respiratory illness, you can ask them to stay home until they have been fever-free for 24 hours (without taking fever-reducing medications such as acetaminophen or ibuprofen). There is currently no mandated clearance process for an employee’s re-entry into the workplace after Coronavirus-related illness, exposure, or quarantine. However, under very limited circumstances, employers may request documentation from a health care provider.
Last Update: March 12, 2020
Q: Can employees be asked to wear or not to wear face masks?
The NYC Health Department does not recommend wearing a face mask if an individual is healthy. Face masks are only recommended if directed by a healthcare provider. Employers may make masks available without requiring employees to wear one.
Further, employers should be careful to not harass or target employees for wearing a face mask. However, an employer may be able to prohibit employees from wearing masks at work but should consult counsel before acting.
Last Update: March 12, 2020
Q: Can I fire someone who has COVID-19?
No. However, you may consider granting the employee an unpaid leave of absence depending on the employee’s situation. Please reach out to Lee to discuss these scenarios on a case-by-case basis.
Should I take my employees’ or customers’ temperatures before allowing them into my business?
No. Because restaurants, bars, and other similar retail businesses are considered a place of public accommodation, any member of the general public has a right to access your establishment freely. It is illegal for an establishment to refuse service based on a person’s race, ethnicity, national origin, or disability. Specifically, you cannot treat a customer differently if you believe they are from a country where the Coronavirus is widespread.
Please also keep in mind that taking an individual’s temperature does not actually indicate whether they have been infected by COVID-19. The virus has shown to be contagious regardless of whether the carrier has exhibited the most common symptom.
Last Update: March 12, 2020
Q: Can I refuse to hire someone who was exposed to COVID-19?
Employers should refrain from asking job applicants about their medical conditions and travel history. Further, employers should not refuse to hire someone based off of current or past infection from the virus or because the applicant is from, or recently visited, a CDC-designated country.
Last Update: March 12, 2020
Q: Can I tell other employees about an infected employee?
Employers should tell their employees that they have been exposed to the virus because employees have a right to know about health risks in the workplace. However, the employer should not disclose the infected employee’s name because employees have a reasonable expectation of privacy regarding their medical information.
Last Update: March 12, 2020
Q: Can employees be required to get vaccinated for COVID-19 once it becomes available?
No, employers cannot require employees to be vaccinated if a vaccine becomes available. However, employers can educate their employees about the vaccine and encourage employees to get vaccinated by paying for the vaccine or giving employees time off from work to obtain it.
Last Update: March 12, 2020
Q: What can be done to prevent the spread of COVID-19 in the workplace?
Employers should encourage employees who are sick to stay home and seek medical care if needed. If an employee shows symptoms of respiratory illness at work, then separate the individual from other employees and send the sick employee home, while still appropriately paying the employee call-in or shift pay as required by law. Additionally, employers can emphasize and encourage healthy hygiene habits, and provide alcohol-based hand sanitizer in the workplace.
Last Update: March 12, 2020
Q: What steps should be taken if an employee, or an employee’s family member recently traveled to an area where COVID-19 is spreading?
You may ask employees returning from an area where COVID-19 is spreading to monitor themselves for symptoms for fourteen days after returning. If the employee develops even mild symptoms, they should self-isolate and call their healthcare provider. Employees who did not travel to an area where COVID-19 is spreading should continue to go to work if their family member who traveled to such a place has no symptoms.
Last Update: March 12, 2020
Q: Should I take my employees’ or customers’ temperatures before allowing them into my business?
No. As places of public accommodation, your businesses are open to the public. You are not a healthcare professional. Nor are your customers or employees coming to you for medical care, treatment or advice. Further, a person’s temperature is not an complete and accurate way to assess a person’s condition. Someone with COVID-19 can be contagious and have no fever, while others can have higher temperatures not related to this virus. Furthermore, be cautious taking action here because it is illegal for an establishment to refuse service based on a person’s race, ethnicity, national origin or disability. You cannot treat a customer differently if you believe they are from a country where COVID-19 is widespread.
Last Update: March 12, 2020
Q: Are there extra health protocols that we should be taking in addition to just washing our hands?
The CDC has posted numerous guidelines for how to best clean your place of business to protect your staff and guests. Please see the following link for more information, https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
Last Update: March 14, 2020
Employees and Staff Reductions
Q: There is a confirmed case of COVID-19 in my restaurant. What do I have to do? Do I need to call anyone?
You are no longer required to contact any government agency after a confirmed (or even suspected) case of COVID-19. However, as a good corporate citizen, you should call 311 to alert them. After doing that you MUST clean and disinfect your shop in accordance with CDC recommendations,
Should you remain open? As of now there is no requirement to fully close upon a positive diagnosis. You must clean and remediate your space. There is no requirement to do a deep clean.
However, the state has made very clear that any establishment that fails to maintain proper health and safety protocols can and will be closed. Even if there is no positive diagnosis, employing these steps is a good practice for many reasons in these perilous times.
Last Update: March 15, 2020
Q: Now that this has been declared a pandemic. Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?
Yes, the CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. So if someone is exhibiting symptoms, even cold like symptoms, you can ask them to return or stay home. If they have reported to work and you are cutting them, you will have to pay them call-in/cut pay. If an employee has any accrued sick time under the New York City Sick and Safe Time Act they are eligible to use those hours. Otherwise, as of now, you are under no obligation to pay them any compensation. This may change as new rules are enacted by the government.
During the H1N1 pandemic, the Equal Employment Opportunity Commission (EEOC) stated that advising workers to go home is not disability-related if the symptoms present are akin to the seasonal influenza or the H1N1 virus. Therefore, an employer may require workers to go home if they exhibit symptoms of the COVID-19 coronavirus.
Last Update: March 15, 2020
Q: Can I take an employee’s temperature at work to determine whether they might be infected?
While the answer to this question is technically now yes, we think that this may just ultimately provide you with a false sense of security. Under normal circumstances, taking an employee’s temperature may be unlawful if it is not job-related or considered a business necessity. However, the EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” Now that the COVID-19 coronavirus has become widespread in our community, employers may take an employee’s temperature at work.
However, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.
Last Update: March 15, 2020
Q: General Employment Information
Today, we have received a number of questions asking about your employment practices obligations with respect to this ongoing and very dynamic situation.
As the Coronavirus continues to spread here in New York, businesses in our industry are being forced to take drastic measures just to make payroll. We’re here to help you weigh all of your options when it comes to reducing labor costs to ensure that you can keep your doors open. That being said, our overview only addresses these issues on a global scale – and, as we always say, there’s really no one-size-fits-all solution.
Last Update: March 12, 2020
Q: What should I tell my employees?
Once an employee is confirmed to have COVID-19, employers must inform their staff of the possible exposure in the workplace, while maintaining confidentiality as required by law. You should inform them that you are following all CDC and local standards regarding remediation and are confident that you have taken all steps to continue to remain open without endangering them or your customers.
Remind your employees that they are required to continue to maintain safe hygiene protocols. Wash their hands frequently. Cover their mouths when coughing, sneezing etc., with a tissue or elbow. Should they feel ill or become ill, they are to let you know immediately. Let them know that your priority remains ensuring a safe and happy workplace for them so that you can continue providing the best service to your customers and guests. Of course, should they have any questions or concerns, they should contact you. We are all in this together.
Last Update: March 15, 2020
Q: Can we require a doctor’s note or clearance to allow someone to work?
For many reasons, no. But this seems to be an impracticability. All media reports indicate that there is a shortage of tests. Some employees do not have health insurance or cannot afford paying for a doctor. Even still, someone may have the virus but not show any symptoms and therefore not even consider being tested. Best practices indicate sending home those that are showing any symptoms and pay them with cut/call-in pay to be supplemented with sick time—and then do not let them return to work until the symptoms have abated. The best thing we can do is to continue using best cleaning practices to prevent the transmission of the disease.
Last Update: March 15, 2020
Q: The President and Vice President just announced paid family leave, do you have more information?
This is literally breaking news, but we know that these bills are working their way through Congress. Once we have more details, you will be the first to know. We can tell you that it appears that the government is requiring that any and all employees affected by COVID-19 will be compensated for 80 hours of paid sick leave. Who is actually paying for this? And how is that money being paid? We hate to say it, but we still don’t know the answer to this. We understand the extreme impact that this will have on your business and we are closely monitoring this issue.
Last Update: March 15, 2020
Q: Can I switch everyone over to direct deposit?
No. Under current law, you cannot require your employees to be paid via direct deposit. You also cannot terminate an employee that won’t agree to be paid by direct deposit. As a reminder, you must pay every employee for all hours worked.
Last Update: March 15, 2020
Q: Can I terminate some employees and not others?
Yes. See https://helbraunlevey.wpengine.com/coronavirus for more information. That being said, as you determine which employees are being retained, laid off, or terminated, be sure that your decision-making process is something that can be easily understood by your staff. It must be clear to your employees that your decisions are being made not for inappropriate reasons (i.e., race, sex, playing favorites), but for the right ones (i.e., seniority, essential to operations).
Last Update: March 15, 2020
Q: Have there been any changes to Unemployment Insurance?
Yes. The exact details are being fleshed out, but we expect the government to waive measures like work search requirements or waiting periods for those individuals that have either been diagnosed with COVID-19 or have lost their jobs as a result of the pandemic. We also expect that the government will require you to provide a notice to your affected employees about their unemployment insurance rights. The specific nature of the notice is still essentially undefined, but we expect to have some answers for you in the coming days.
Unemployment claims can be filed online through this link. Additional information can be found here.
Last Update: March 15, 2020
Q: If I decide to permanently terminate any of my employees, should I go about this any differently than I would a “normal” termination?
No. While we do suggest being open and honest with your employees – particularly with respect to the difficulties the business is facing – it is incredibly important that you be as brief and concise as possible. Don’t belabor it. Be prepared to collect any company property that might be in the employee’s possession and have a written termination letter ready to give to the employee at the end of that meeting.
Handled respectfully and communicated thoughtfully, this meeting should leave you feeling good about the way you’ve managed a particularly difficult situation and will give the employee the chance to focus on his or her future, rather than dwell on the past.
Last Update: March 12, 2020
Q: Currently, our employees accrue paid sick leave based on hours worked, and they don’t get all their sick leave upfront. Most people don’t have a lot of sick leave accrued yet, and so I’m wondering if it makes sense for us to just give them all their sick leave now instead of using the accrual model. Are there any implications I should be aware of re: switching this mid-year?
There is no practical difference between changing from accrual to giving your employees the allotted time. You must communicate this change to all of your employees and to your payroll processing company so that the actual number of sick hours being taken by your staff is actually tracked and monitored. To be clear you are under no obligation to pay more than 40 hours of sick leave in one calendar year.
Last Update: March 14, 2020
Q: What can be done to prevent harassment and discrimination in the workplace in connection to COVID-19?
Stigma and discrimination can occur when people associate COVID-19 with a population or nationality, even though not everyone in that population or from that region is at risk for the disease. Employers should be extra careful to ensure employees are not being harassed or discriminated against because of their race or national origin due to coronavirus fears. Such precautions may include informing employees about the facts of COVID-19.
Last Update: March 12, 2020
Q: Can travel restrictions be imposed on employees?
The Centers for Disease Control and Prevention (CDC) recommends that travelers avoid all non-essential travel, postpone trips, or use precaution for particular countries, however, it is currently lawful to travel to those designated counties. New York law prohibits discrimination against employees based on their lawful conduct outside of the workplace. Employers can require employees to limit all non-essential business travel to CDC-designated countries, however, employers may only strongly encourage employees to limit non-essential personal travel to CDC-designated countries.
Last Update: March 12, 2020
Paying Employees
Q: Should I pay my staff in cash?
This is never a good idea. However, in very limited circumstances like these, you can pay them in cash as long as they are being paid for all hours worked and you provide them with a paystub that includes all information mandated by law. You must also be sure to have your employee acknowledge receipt of the cash payment, signing off specifically on the exact amount of cash that was paid.
Last Update: March 15, 2020
Q: Can I cut my manager’s salaries?
Yes. However, if you do, you must provide your manager (or any employee whose wages are changing) with all required notifications under law about the change in their pay. As a reminder all exempt employees must make a minimum of $1,125.00/week in order to be exempt from overtime requirements. If an exempt employee’s salary falls below that minimum threshold, you must convert them to an hourly employee and then pay them all applicable overtime.
Last Update: March 15, 2020
Q: What can I do to cut my payroll down as soon as possible?
You can consider staff furloughs or layoffs. When an employer furloughs its employees, it requires them to work fewer hours or days in a given pay period. A layoff, on the other hand, is a temporary separation from payroll: an employer may essentially “terminate” an employee temporarily on the basis that there is not enough work for them to perform, while also having the option to continue paying a laid-off employee’s benefits. If you are interested in pursuing a more permanent option, you may also terminate employees at-will.
Last Update: March 12, 2020
Q: Do I need to provide any kind of notice to my staff before making any these changes?
Yes, but specific type of notice will depend on a number of different factors relating to the size of your staff and the extent of the changes being made.
In short, however, the New York Worker Adjustment and Retraining Notification (WARN) Act requires businesses with 50+ full-time employees to provide their staff notice of closures or layoffs. If you fall into this category, call us.
Last Update: March 12, 2020
Q: Is the minimum wage being reduced? What about the tip credit?
No. Minimum wage remains at $15.00/hour. The tip credit remains at $5.00/hour ($2.50/hour for delivery drivers and service employees) for ALL New York City Employers. For those employers that are currently availing themselves of the tip credit, please remember that your employees must be reaching that full $15.00 minimum wage threshold for all hours worked. If, at any point, tips don’t make up that difference, you must make up the shortfall.
Last Update: March 15, 2020
Q: What is the best way to continue to pay floor staff? Can I co-mingle tip pools? Subsidize BOH with FOH tips?
You must continue all regular payroll practices. There are no changes to your current payroll practices. You cannot alter or modify your tip pools beyond what is permitted under law.
Last Update: March 15, 2020
Q: Can I furlough, layoff, or terminate my employees? Can I remain open with limited staff? Can I reduce the number of hours?
Yes. Please see https://helbraunlevey.wpengine.com/coronavirus/ for more information. It’s important to remember that a decision to “close” for business does not necessarily mean that your business has to shutter its doors forever. While each situation is different, and you would need to consult with one of our attorneys before you change your employees’ status, we are advising that you make adjustments of a temporary nature, usually in the form of a temporary lay off. This gives you flexibility to react to any forthcoming changes without hopefully having to start from scratch.
Last Update: March 15, 2020
Q: What is the effect of a furlough?
When it comes to your hourly (non-exempt) employees, you may actually be able to begin adjusting your staff schedules beginning as early as your next regularly-posted schedule.
When it comes to your salaried employees, though, you will be required to pay those employees their full salary for any pay period during which they perform any work, including even minimal tasks like checking emails.
As a general note, an employer may require all employees to go on furlough, or it may exclude some employees who provide essential services. Generally, the theory is to have the majority of employees share some hardship as opposed to a few employees losing their jobs completely. And in the event of a furlough, employees may choose to use sick leave, paid time off, or vacation in order to get paid during a portion of their furlough.
Last Update: March 12, 2020
Q: Are furloughed and laid-off employees entitled to unemployment?
Generally speaking, yes. While some employees may be subject to certain waiting periods, individuals can file for full or partial benefits, depending on their circumstances.
Last Update: March 12, 2020
Q: I’m planning on implementing a mass lay-off or furlough, how should I go about notifying those employees of their change in status? Can I meet with multiple employees at the same time?
No. Under no circumstances should you be laying off or terminating more than one employee in a single meeting. Each employee must be communicated with separately, and while each meeting should be handled in a somewhat systematic and uniform manner, no employment relationship should be treated the same.
Last Update: March 12, 2020
Q: The President and Vice President just announced paid family leave, do you have more information?
This is literally breaking news, but we know that these bills are working their way through Congress. Once we have more details, you will be the first to know. We can tell you that it appears that the government is requiring all employees affected by COVID-19 with 80 hours of paid sick leave. Who is actually paying for this and how? We do not know. We understand the clear implications that this means for your business and are closely monitoring this issue.
Last Update: March 16, 2020
