N.Y. Passes Additional Sick Leave Legislation and N.J. Amends Existing Leave, Insurance Laws

New York and New Jersey are at the forefront of legislative action to protect employees' rights within their states by granting additional sick leave benefits.

This Holland & Knight alert provides updates to a previous alert detailing some of the key aspects of New York and New Jersey legislation and their impact on both employers and employees. (See "COVID-19: New York and New Jersey Pass Legislation Protecting Employees," March 24, 2020.)

New York

On April 3, 2020, Gov. Andrew Cuomo signed the New York state budget for 2021, which includes a permanent sick leave program for employees, effective Jan. 1, 2021.

The legislation differentiates between employers of different size in providing for the following amounts of leave for employees.

• Employers with four or fewer employees must provide five days of job-protected unpaid sick leave per year.
• Employers with between five and 99 employees must provide at least five days of job-protected paid sick leave per year.
• Employers with 100 or more employees must provide at least seven days of job-protected paid sick leave per year.

It is important for employers to note that the new legislation provides the minimum number of sick days to which employees are entitled. Employers who already provide sick days beyond what the statute requires may continue to comply with their existing policies. Additionally, employers in New York City must abide by the New York City Paid Sick Leave Law, which provides 40 hours of paid sick leave to eligible employees per year.

New Jersey

On March 25, 2020, Gov. Phil Murphy signed New Jersey Senate Bill S2304, which, effective immediately, expanded entitlements under New Jersey's existing Earned Sick Leave Law (ESL), Temporary Disability Insurance (TDI) Law and Family Leave Insurance (FLI) Law to cover situations related to public health emergencies such as the COVID-19 pandemic.

ESL

Under the ESL requirements, employers of all sizes must provide full-time, part-time and temporary employees with up to 40 hours of earned sick leave per year. This earned sick leave is paid at the employee's regular rate of pay, or, for an employee whose pay fluctuates, according to the employee's average total earnings, exclusive of overtime pay, for the seven most recent working days. Employees accrue one hour of earned sick leave for every 30 hours worked, up to a maximum of 40 hours of leave per benefit year. An employer may choose to advance employees with at least 40 hours of leave per benefit year for use throughout the benefit year.

Under the ESL, leave may now be used under the following COVID-19-related circumstances by employees who:

• have COVID-19 or symptoms of COVID-19
• were exposed to coronavirus during the course of their work (e.g., healthcare workers, wait staff, retail, teachers, etc.) and now have been told by a public health authority to self-quarantine
• are unable to work because their children's school or daycare was ordered closed by a public official for a public health reason
• are unable to work because their workplace was ordered closed by a public official for a public health reason
• refuse to go to work because, although their workplace was ordered closed by a public official for a public health reason, their workplace remains open in defiance of that directive
• do not go to work because their healthcare provider says they are at greater risk due to a preexisting health condition
• are told to self-quarantine due to virus exposure outside of the workplace, or
• has to care for a relative or loved one with COVID-19 or symptoms of COVID-19

S2304 also expanded the definition of "serious health condition" to allow employees within the state of New Jersey to benefit from TDI and FLI benefits during a public health emergency.

FLI

The FLI program provides employees who contribute to the state plan or an approved private plan with up to six weeks of paid family leave, which can be used to provide care for a seriously ill or injured family member. The leave can be taken intermittently. The FLI program provides that until June 30, 2020, claimants are paid two-thirds of their average weekly wage, up to a maximum of $667 per week. As of July 1, 2020, claimants will be paid 85 percent of their average weekly wage, up to a maximum of $881 per week. Following the signing of S2304, the already existing FLI program may now be used by individuals who need to care for a relative or loved one with COVID-19 or symptoms of COVID-19.

TDI

The TDI program provides employees who contribute to the state plan or an approved private plan with up to 26 weeks of temporary disability benefits. The TDI program provides that until June 30, 2020, claimants are paid two-thirds of their average weekly wage, up to a maximum of $667 per week. As of July 1, 2020, claimants will be paid 85 percent of their average weekly wage, up to a maximum of $881 per week. Following the signing of S2304, the already existing TDI program may now be used by individuals who have COVID-19 or symptoms of COVID-19, or who are advised by a healthcare provider or public health authority to self-quarantine. TDI may also be used by healthcare providers who are exposed to COVID-19 at work and are recommended by a medical professional to self-quarantine.

Conclusion

For questions about how this new legislation applies to your organization or what new obligations you may owe your employees, please contact the authors or another member of Holland & Knight's Labor, Employment and Benefits Group. Holland & Knight attorneys have extensive experience advising organizations on legal compliance and best practices in addressing the effects of COVID-19.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.