New Federal and New York State Leave Laws and I-9 Compliance Relief

Phillips Lytle will continue to provide time-sensitive updates affecting your business as major changes continue to take place. Below are three areas that will impact the obligations of employers.

FEDERAL LEGISLATION IMPOSES TEMPORARY COVID-19 PAID SICK AND FAMILY LEAVE OBLIGATIONS ON EMPLOYERS WITH FEWER THAN 500 EMPLOYEES

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA contains two laws especially relevant to employers: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The laws impose new, temporary obligations on covered employers to provide paid sick and family leave related to COVID-19. Both laws take effect on April 2, 2020, and sunset on December 31, 2020.

Emergency Paid Sick Leave

The EPSLA requires employers with fewer than 500 employees to provide paid sick leave to an employee who is unable to work for the following reasons:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. A health care provider has advised the employee to self-quarantine due to COVID-19 concerns;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for a person who is subject to a government quarantine or self-isolation order, or has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. The employee is caring for a son or daughter whose school or place of care has closed, or whose child care provider is unavailable, due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

The amount of paid time an employee is entitled to depends on whether the employee is full- or part-time. Full-time employees are entitled to up to 80 hours of paid leave. Part-time employees are entitled to the number of hours they work on average over a two-week period. However, the EPSLA caps the amount of pay an employee can receive for sick leave depending on the reason for the leave. Employees who qualify for leave under reasons 1, 2 and 3 above are limited to $511 per day and $5,110 in the aggregate. Employees who qualify for leave under reasons 4, 5 and 6 are limited to $200 per day and $2,000 in the aggregate.

Employees are immediately eligible for paid sick leave under the EPSLA regardless of length of employment, and employers cannot require employees to use other paid leave before using leave under the EPSLA.

The EPSLA requires employers to post a notice approved by the Secretary of Labor informing employees of their rights under the law. The EPSLA also directs the Secretary of Labor to issue a model notice not later than seven days after the law’s enactment, or by March 25, 2020.

The EPSLA also authorizes the Secretary of Labor to issue regulations excluding certain health care providers and emergency responders from the law’s coverage, and to exempt businesses with fewer than 50 employees when complying with it would jeopardize their economic viability.

Emergency Family and Medical Leave Expansion Act

The EFMLEA expands the Family and Medical Leave Act (FMLA) by requiring all employers with fewer than 500 employees to provide an employee who has been employed for at least 30 calendar days with up to 12 weeks of job-protected leave when the employee is unable to work, because the employee needs to care for a son or daughter under the age of 18 whose school or place of care has been closed, or whose child care provider is unavailable, because of a government-declared emergency related to COVID-19.

The first 10 days of EFMLEA leave may be unpaid, but an employee may elect to substitute any accrued paid vacation, or personal, medical or sick leave. After the first 10 days of leave, an employer must provide paid leave to the employee for the remainder of the covered leave period. The rate of pay for the paid leave is calculated based on a rate not less than two-thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work, but is capped at $200 per day and an aggregate of $10,000.

Employers should be aware that the normal FMLA coverage requirements that an employer must have at least 50 employees working within a 75-mile radius of the employee’s worksite, and that the employee must have worked at least 1,250 hours in the previous 12 months, do not apply to the EFMLEA. Therefore, employers with fewer than 500 employees that normally would not be subject to the FMLA will have to provide EFMLEA leave to any employee employed at least 30 days unless otherwise exempted.

However, the EFMLEA, like the EPSLA, also authorizes the Secretary of Labor to issue regulations excluding certain health care providers and emergency responders from its coverage, and to exempt businesses with fewer than 50 employees when complying with it would jeopardize their economic viability.

Tax Credits

The FFCRA also provides that employers are entitled to a refundable tax credit equal to 100% of the qualified payments they make under the EPSLA and/or EFMLEA. The qualified sick leave wages under the EPSLA are capped at $511 per day for leave taken because the employee (1) is subject to an order of quarantine or isolation; (2) has been advised to self-quarantine; or (3) is experiencing symptoms of COVID-19 ($200 per day for all other reasons) for up to 10 days per employee in each calendar quarter. The qualified wages under the EFMLEA are capped at $200 per day per employee up to $10,000 total per calendar quarter.

NEW YORK STATE REQUIRES JOB-PROTECTED LEAVE FOR EMPLOYEES SUBJECT TO MANDATORY COVID-19 QUARANTINE OR ISOLATION

On March 18, 2020, Governor Cuomo signed into law legislation providing employees, who are subject to a government-issued mandatory or precautionary order of quarantine or isolation, with immediate job-protected paid or unpaid sick leave for the duration of the quarantine or isolation period. Whether leave is paid or unpaid, and the duration of any paid leave, is dependent on the employer’s size. The law also allows covered employees to receive short-term disability and New York State Paid Family Leave benefits in some cases. The amount of paid and unpaid leave an employee is entitled to, and the availability of disability and Paid Family Leave benefits, are outlined in the following table.

Under the law, a qualifying mandatory or precautionary order of quarantine or isolation is one issued by the “state of New York, the department of health, local board of health, or any governmental entity duly authorized to issue such order due to COVID-19.”

All leave required under the new law must be provided in addition to any sick leave an employee may otherwise be entitled to under an employer’s policies.

Exceptions to Sick Leave Entitlement

The new leave law contains two exceptions to its application. First, the law does not apply if an employee (1) is deemed asymptomatic or has not yet been diagnosed with any medical condition; and (2) is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.

Second, an employee is not entitled to paid leave because of a mandatory or precautionary order of quarantine or isolation if (1) the employee has returned to the U.S. from a country for which the Centers for Disease Control and Prevention has issued a level two or three travel health notice; (2) travel to the other country was not undertaken as part of the employee’s employment or at the direction of the employer; and (3) the employee was advised of the travel health notice and the limitations contained in the new law prior to traveling.

Interaction with Federal Law

The new law also provides that in the event the federal government provides sick leave and/or employee benefits related to COVID-19, then the provisions of the new law shall not be available to any employee, except to the extent that the benefits under the new law exceed those provided by federal law. In light of the enactment of the EPSLA, New York State employers should be able to count any paid leave provided under the EPSLA for an employee being subject to an order of quarantine or isolation towards any paid leave required under the New York State law.

DEPARTMENT OF HOMELAND SECURITY RELAXES FORM I-9 COMPLIANCE REQUIREMENTS FOR COVID-19

On March 20, 2020, the Department of Homeland Security (DHS) announced that due to the COVID-19 crisis, it is temporarily deferring the requirement that employers review the identity and employment authorization documents for new hires in the employee’s physical presence. The temporary exception only applies to employers and workplaces that are operating completely remotely and does not apply if there are employees physically present at a work location. Under the DHS’s deferral policy, qualifying employers will be permitted to review Form I-9 identity and employment authorization documents remotely (e.g., over video link, fax or e-mail, etc.) and obtain, inspect and retain copies of the documents, within three business days for purposes of completing Section 2 of Form I-9. Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9. Once physical inspection occurs, employers should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3 as appropriate, and enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field. The remote verification provisions end on May 19, 2020, or within three business days after the COVID-19 National Emergency declared on March 13, 2020, whichever occurs first. Employers who use remote verification must provide written documentation of their remote onboarding and telework policy for each employee.