Hello everyone,

Below are short answers to the questions that were submitted during and after our presentation. Please note the disclaimer below, and please also be aware that, because these laws are brand new and guidance is still developing, there is certainly a chance that some of these answers will change in the future. The questions and short answers are as follows:

1. If an employer is cutting the hours of employees (instead of a layoff)...can the employer prohibit employees from using paid time off/vacation?

Whether and when an employee is entitled to use PTO or vacation will likely depend on the employer’s policies, and any collective bargaining agreement or employment agreement that might apply. If the employer’s policies give the employer discretion on whether and when an employee can take PTO or vacation time, then the employer may be authorized to deny an employee’s request, so long as the action doesn’t conflict with any existing contracts and is not discriminatory. Note, however, that, if the employee requests paid leave for a reason that qualifies the employee for leave under the new NYS law, the EFMLEA, the EPSLA, the PFL, or the FMLA, then the employer cannot deny the employees’ use of that time off. Also, if the employer is participating in the shared work program, it may be problematic for employees to be taking their PTO for the other hours of the day that they previously worked (although this is somewhat unclear). Additionally, employers should be aware that if the employees are laid off in the future, they will be entitled to payouts of their vacation and PTO. As a result, if a potential layoff is foreseen, it might be beneficial for the employer to allow an employee to take time off.

2. We were under the impression that as an employer with more than 500 employees, we were exempt from some of the NYS Paid Sick Leave requirements, but it sounds like this isn't the case here. Can you confirm?

Yes, employers with more than 500 employees are exempt from the federal EPSLA and EFMLEA paid sick leave requirements, but are NOT exempt from the NYS paid sick leave requirements. Under New York law, an employer with more than 500 employees must provide an employee with 14 paid sick leave days if the employee is subject to a government-issued order of quarantine or isolation. Employers with more than 500 employees must also provide an employee with access to PFL benefits if the employee is caring for a dependent child who is subject to a government-issued order of quarantine or isolation.

3. If an employee is experiencing symptoms of fever and congestion but is not subject to a mandatory government quarantine, are we required to pay them sick leave? In this case, they have used up sick leave, but we don't want them sick in the office. Hard to get an official quarantine order

This depends on the size of the employer, and the steps that the employee has taken so far.

Under the NYS law, (1) private employers with 11-99 employees or 10 or more employees and a net income of more than $1 million employers must provide employees who are subject to a government-issued quarantine or isolation order with 5 paid sick leave days, and (2) public employers and private employers with 100+ employees must provide employees who are subject to a government-issued quarantine or isolation order with 14 paid sick leave days. NYS guidance explains that, if the local health department is unable to immediately provide the employee with the order of quarantine or isolation, the employee can still obtain PFL from an insurance carrier by submitting documentation from a licensed medical provider who has treated the employee (or minor dependent child), attesting that the employee (or child) qualifies for the order. It is unclear from the guidance whether an employer must provide the 5 or 14 paid sick leave days to an employee who has not yet received an order from a governmental entity but submits an attestation from a medical provider. It seems, though, that if this is sufficient proof to submit to the insurance carrier, it probably should also be deemed sufficient proof for an employer. It also seems, however, that the employer should be able to take steps to verify the information the employee submitted.

Under the federal EPSLA, public employers and private employers with under 500 employees must provide up to two weeks (up to 80 hours) of paid sick leave where the employee is unable to work because the employee (1) has been advised by a health care provider to self-quarantine related to COVID-19; or (2) is experiencing COVID-19 symptoms and is seeking a medical diagnosis. Therefore, under the federal law, an employee would not need a quarantine order to establish entitlement to paid leave. However, the employee would need to consult with a medical provider and/or attempt to get tested in order to qualify for the EPSLA leave.

The total number of sick days available to employees who are experiencing symptoms and awaiting a diagnosis under the New York and federal laws also varies depending upon the size of the employer. The New York law states that the federal leave laws apply only, unless the state law would provide greater benefits to employees. As a result, in certain cases, employees are able to claim the state benefits on top of the federal benefits. Eligible employees of employers with over 500 employees (who are not entitled to federal benefits) could still be entitled to the 14 paid sick leave days under New York law. Eligible employees of public employers and private employers with more than 100 but less than 500 employees may be entitled to: (1) 80 hours (10 days) of EPSLA leave (since the benefits for the first 10 days are the same as the state law), and (2) up to four additional days of paid sick time under the state law (since the state law provides up to 14 days of sick time). An employee may also be entitled to PFL benefits after the employee’s EPSLA leave expires if the employee or the employee’s child continue to be subject to a government-issued quarantine or isolation order. More details regarding the NYS benefits can be found here: https://paidfamilyleave.ny.gov/new-york-paid-family-leave-covid-19-faqs.

4. I am super confused about the unemployment benefits. The additional $600 per week would indicate employees on unemployment are making more than employees making $15/hr. Am I understanding this correctly?

The additional $600 is automatically added onto all NYS unemployment insurance benefits now through July 31, 2020. Yes, an employee on UI would be collecting more than employees making $15/hour, since the employee on UI would also collect some amount from NYS above the $600. A detailed Q&A from the NYSDOL that may answer more of your questions can be found here: https://labor.ny.gov/ui/pdfs/ui-covid-faq.pdf.

5. I do have a question for an employee who is out because he has no one to watch his children, what FMLA forms do I use for his EFMLA? Do I use the same forms, with the exception of the Physician’s Notification Form?

The USDOL addressed this issue in the guidance that was released yesterday with its regulations. The guidance can be accessed here: https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act. In it, USDOL explained that it intentionally chose not to require employers to respond to employees who request or use EFMLEA leave with notices of eligibility, rights and responsibilities, or written designations that leave use counts against employees’ FMLA leave allowances. However, USDOL stated that if an employer has established practices for providing individual employees with specific notices compliant with the FMLA regulatory guidance, and prefer to apply their existing practices to EFMLEA leave users, they may do so.

What is more important, though, is for an employer to receive documentation from the employee in support of the EFMLEA leave, to ensure that the employer will be able to adequately support its entitlement to the tax credit for the leave. As provided in § 826.100 of the new regulations, such documentation must include a signed statement containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason; (5) the name of the child being care for; (6) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (5) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

6. Can an employer disclose the name of the employee who tested positive when telling employees who were identified as having close contact?

No, an employer should NOT disclose the name of the employee who tested positive when telling employees who were identified as having close contact. The reason is that the person's positive COVID-19 status is considered to be medical information. Instead, the employer can inform the employees who had close contact that they may have been exposed, and that they should monitor for symptoms without disclosing the employee's name. If an employer learns that an employee has COVID-19 or symptoms associated with the disease, the employer may need to disclose this health information to certain individuals in order to appropriately respond to the exposure. However, the employer should limit the number of people who learn the identity of the particular employee. A designated representative of the employer may interview the employee to compile a list of people who possibly had contact with the employee at work, but this does not require disclosing the employee’s name. All employer officials designated who learn the employee’s name should be specifically instructed to maintain the confidentiality of the employee’s name. For more information, you can watch the EEOC's webinar here: https://www.youtube.com/watch?v=i8bHOtOFfJU. Question 5 of the EEOC webinar addresses this issue (around the 13 minute mark).

Thank you again for participating in the presentation. Please feel free to reach out if you have any further questions.

Best,

Norma Meacham and Monica Skanes