Provides requirements for sick leave and the provision of certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19; provides for sick leave.
STATE OF NEW YORK
________________________________________________________________________
8090
IN SENATE
March 17, 2020
___________
Introduced by Sen. RAMOS -- (at request of the Governor) -- read twice
and ordered printed, and when printed to be committed to the Committee
on Rules
AN ACT providing requirements for sick leave and the provision of
certain employee benefits when such employee is subject to a mandatory
or precautionary order of quarantine or isolation due to COVID-19; and
to amend the labor law, in relation to requirements for sick leave
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. 1.(a) For employers with ten or fewer employees as of Janu-
2 ary 1, 2020, each employee who is subject to a mandatory or precaution-
3 ary order of quarantine or isolation issued by the state of New York,
4 the department of health, local board of health, or any governmental
5 entity duly authorized to issue such order due to COVID-19, shall be
6 provided with unpaid sick leave until the termination of any mandatory
7 or precautionary order of quarantine or isolation due to COVID-19 and
8 any other benefit as provided by any other provision of law. During the
9 period of mandatory or precautionary quarantine or isolation, an employ-
10 ee shall be eligible for paid family leave benefits and benefits due
11 pursuant to disability pursuant to this act. An employer with ten or
12 fewer employees as of January 1, 2020, and that has a net income of
13 greater than one million dollars in the previous tax year, shall provide
14 each employee who is subject to a precautionary or mandatory order of
15 quarantine or isolation issued by the state of New York, the department
16 of health, local board of health, or any governmental entity duly
17 authorized to issue such order due to COVID-19, at least five days of
18 paid sick leave and unpaid leave until the termination of any mandatory
19 or precautionary order of quarantine or isolation. After such five days
20 of paid sick leave, an employee shall be eligible for paid family leave
21 benefits and benefits due pursuant to disability pursuant to this act.
22 (b) For employers with between eleven and ninety-nine employees as of
23 January 1, 2020, each employee who is subject to a mandatory or precau-
24 tionary order of quarantine or isolation issued by the state of New
25 York, the department of health, local board of health, or any govern-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12051-02-0
S. 8090 2
1 mental entity duly authorized to issue such order due to COVID-19, shall
2 be provided with at least five days of paid sick leave and unpaid leave
3 until the termination of any mandatory or precautionary order of quaran-
4 tine or isolation. After such five days of paid sick leave, an employee
5 shall be eligible for paid family leave benefits and benefits due pursu-
6 ant to disability pursuant to this act.
7 (c) For employers with one hundred or more employees as of January 1,
8 2020, each employee who is subject to a mandatory or precautionary order
9 of quarantine or isolation issued by the state of New York, the depart-
10 ment of health, local board of health, or any governmental entity duly
11 authorized to issue such order due to COVID-19, shall be provided with
12 at least fourteen days of paid sick leave during any mandatory or
13 precautionary order of quarantine or isolation.
14 (d) For public employers, each officer or employee who is subject to a
15 mandatory or precautionary order of quarantine or isolation issued by
16 the state of New York, the department of health, local board of health,
17 or any governmental entity duly authorized to issue such order due to
18 COVID-19 shall be provided with at least fourteen days of paid sick
19 leave during any mandatory or precautionary order of quarantine or
20 isolation. Each officer or employee shall be compensated at his or her
21 regular rate of pay for those regular work hours during which the offi-
22 cer or employee is absent from work due to a mandatory or precautionary
23 order of quarantine or isolation due to COVID-19. For purposes of this
24 act, "public employer" shall mean the following: (i) the state; (ii)
25 a county, city, town or village; (iii) a school district, board of
26 cooperative educational services, vocational education and extension
27 board or a school district as enumerated in section 1 of chapter 566
28 of the laws of 1967, as amended; (iv) any governmental entity operating
29 a college or university; (v) a public improvement or special district
30 including police or fire districts; (vi) a public authority, commis-
31 sion or public benefit corporation; or (vii) any other public corpo-
32 ration, agency, instrumentality or unit of government which exercises
33 governmental power under the laws of this state.
34 (e) Such leave shall be provided without loss of an officer or employ-
35 ee's accrued sick leave.
36 2. For purposes of this act, "mandatory or precautionary order of
37 quarantine or isolation" shall mean a mandatory or precautionary order
38 of quarantine or isolation issued by the state of New York, the depart-
39 ment of health, local board of health, or any government entity duly
40 authorized to issue such order due to COVID-19.
41 3. Upon return to work following leave taken pursuant to this act, an
42 employee shall be restored by his or her employer to the position of
43 employment held by the employee prior to any leave taken pursuant to
44 this act with the same pay and other terms and conditions of employment.
45 No employer or his or her agent, or the officer or agent of any corpo-
46 ration, partnership, or limited liability company, or any other person,
47 shall discharge, threaten, penalize, or in any other manner discriminate
48 or retaliate against any employee because such employee has taken leave
49 pursuant to this act.
50 4. An employee shall not receive paid sick leave benefits or any other
51 paid benefits provided by any provisions of this section if the employee
52 is subject to a mandatory or precautionary order of quarantine because
53 the employee has returned to the United States after traveling to a
54 country for which the Centers for Disease Control and Prevention has a
55 level two or three travel health notice and the travel to that country
56 was not taken as part of the employee's employment or at the direction
S. 8090 3
1 of the employee's employer, and if the employee was provided notice of
2 the travel health notice and the limitations of this subdivision prior
3 to such travel. Such employee shall be eligible to use accrued leave
4 provided by the employer, or to the extent that such employee does not
5 have accrued leave or sufficient accrued leave, unpaid sick leave shall
6 be provided for the duration of the mandatory or precautionary quaran-
7 tine or isolation.
8 5. The commissioner of labor shall have authority to adopt regu-
9 lations, including emergency regulations, and issue guidance to effectu-
10 ate any of the provisions of this act. Employers shall comply with regu-
11 lations promulgated by the commissioner of labor for this purpose which
12 may include, but is not limited to, standards for the use, payment, and
13 employee eligibility of sick leave pursuant to this act.
14 6. Notwithstanding any other provision of law, and for purposes of
15 this act only, for purposes of article 9 of the workers' compensation
16 law, "disability" shall mean: any inability of an employee to perform
17 the regular duties of his or her employment or the duties of any other
18 employment which his or her employer may offer him or her as a result of
19 a mandatory or precautionary order of quarantine or isolation issued by
20 the state, the department of health, a local board of health, or any
21 government entity duly authorized to issue such order due to COVID-19
22 and when the employee has exhausted all paid sick leave provided by the
23 employee's employer under this act.
24 7. Notwithstanding subdivision 1 of section 204 of the workers'
25 compensation law, disability benefits payable pursuant to this act shall
26 be payable on the first day of disability.
27 8. Notwithstanding any other provision of law, and for purposes of
28 this act only, for purposes of article 9 of the workers' compensation
29 law, "family leave" shall mean: (a) any leave taken by an employee from
30 work when an employee is subject to a mandatory or precautionary order
31 of quarantine or isolation issued by the state, the department of
32 health, a local board of health, or any government entity duly author-
33 ized to issue such order due to COVID-19; or (b) to provide care for a
34 minor dependent child of the employee who is subject to a mandatory or
35 precautionary order of quarantine or isolation issued by the state, the
36 department of health, a local board of health, or any government entity
37 duly authorized to issue such order due to COVID-19.
38 9. Notwithstanding any other provision of law, and for purposes of
39 this act only, for purposes of article 9 of the workers' compensation
40 law, disability and family leave benefits pursuant to this act may be
41 payable concurrently to an eligible employee upon the first full day of
42 an unpaid period of mandatory or precautionary order of quarantine or
43 isolation issued by the state of New York, the department of health, a
44 local board of health, or any government entity duly authorized to issue
45 such order due to COVID-19, provided however, an employee may not
46 collect any benefits that would exceed $840.70 in paid family leave and
47 $2,043.92 in benefits due pursuant to disability per week.
48 10. Notwithstanding any other provision of law, and for purposes of
49 this act only, for purposes of article 9 of the workers' compensation
50 law, the maximum weekly benefit which the employee is entitled to
51 receive for benefits due pursuant to disability pursuant to subdivision
52 six of this section only shall be the difference between the maximum
53 weekly family leave benefit and such employee's total average weekly
54 wage from each covered employer up to a maximum benefit due pursuant to
55 disability of $2,043.92 per week.
S. 8090 4
1 11. Notwithstanding subdivision 7 of section 590, and subdivision 2 of
2 section 607, of the labor law, a claim for benefits under article 18 of
3 the labor law due to closure of an employer otherwise subject to this
4 section for a reason related to COVID-19 or due to a mandatory order of
5 a government entity duly authorized to issue such order to close such
6 employer otherwise subject to this section, shall not be subject to a
7 waiting period for a claim for benefits pursuant to such title.
8 12. A mandatory or precautionary order of quarantine or isolation
9 issued by the state, the department of health, a local board of health,
10 or any government entity duly authorized to issue such order due to
11 COVID-19 shall be sufficient proof of disability or proof of need for
12 family leave taken pursuant to this act.
13 13. The provisions of this act shall not apply in cases where an
14 employee is deemed asymptomatic or has not yet been diagnosed with any
15 medical condition and is physically able to work while under a mandatory
16 or precautionary order of quarantine or isolation, whether through
17 remote access or other similar means.
18 14. Nothing in this section shall be deemed to impede, infringe,
19 diminish or impair the rights of a public employee or employer under any
20 law, rule, regulation or collectively negotiated agreement, or the
21 rights and benefits which accrue to employees through collective
22 bargaining agreements, or otherwise diminish the integrity of the exist-
23 ing collective bargaining relationship, or to prohibit any personnel
24 action which otherwise would have been taken regardless of any request
25 to use, or utilization of, any leave provided by this act.
26 15. Notwithstanding any inconsistent provision of law, on or before
27 June 1, 2020, the superintendent of financial services by regulation, in
28 consultation with the director of the state insurance fund and the chair
29 of the workers' compensation board of the state, shall promulgate regu-
30 lations necessary for the implementation of a risk adjustment pool to be
31 administered directly by the superintendent of financial services, in
32 consultation with the director of the state insurance fund and the chair
33 of the workers' compensation board of the state. "Risk adjustment pool"
34 as used in this subdivision shall mean the process used to stabilize
35 member claims pursuant to this act in order to protect insurers from
36 disproportionate adverse risks. Disproportionate losses of any members
37 of the risk adjustment pool in excess of threshold limits established by
38 the superintendent of financial services of the state may be supported,
39 if required by the superintendent, by other members of such pool includ-
40 ing the state insurance fund in a proportion to be determined by the
41 superintendent. Any such support provided by members of the pool shall
42 be fully repaid, including reasonable interest, through a mechanism and
43 period of time to be determined by the superintendent of financial
44 services.
45 16. (a) The superintendent of financial services, in consultation
46 with the director of the state insurance fund and the chair of the work-
47 ers' compensation board shall issue two reports assessing the risk
48 adjustment pool required by this act.
49 (b) On or before January 1, 2022, an initial report shall be provided
50 to the speaker of the assembly, the chair of the assembly ways and means
51 committee and the chair of the assembly labor committee, the temporary
52 president of the senate, the chair of the senate finance committee and
53 the chair of the senate labor committee. Such report shall include:
54 the total number of claims filed pursuant to this section for (i) family
55 leave benefits, and (ii) benefits due to disability, as a result of a
56 mandatory or precautionary order of quarantine or isolation due to
S. 8090 5
1 COVID-19; the aggregate amount of paid family leave claims and disabili-
2 ty claims; the total amount of the claims paid for out of the risk
3 adjustment pool; the threshold limits established by the department of
4 financial services; and any other information the superintendent of
5 financial services deems necessary to provide to the legislature.
6 (c) On or before January 1, 2025, a final report shall be provided to
7 the speaker of the assembly, the chair of the assembly ways and means
8 committee and the chair of the assembly labor committee, the temporary
9 president of the senate, the chair of the senate finance committee and
10 the chair of the senate labor committee. Such report shall include the
11 balance of the risk adjustment pool, if any, the total amount collected
12 through the repayment mechanism established by the department of finan-
13 cial services including interest; and any other information the super-
14 intendent of financial services deems necessary to provide to the legis-
15 lature. If there exists a balance in the risk adjustment pool, the
16 final report shall provide a timeline by which repayment will be
17 completed.
18 17. If at any point while this section shall be in effect the federal
19 government by law or regulation provides sick leave and/or employee
20 benefits for employees related to COVID-19, then the provisions of this
21 section, including, but not limited to, paid sick leave, paid family
22 leave, and benefits due to disability, shall not be available to any
23 employee otherwise subject to the provisions of this section; provided,
24 however, that if the provisions of this section would have provided sick
25 leave and/or employee benefits in excess of the benefits provided by the
26 federal government by law or regulation, then such employee shall be
27 able to claim such additional sick leave and/or employee benefits pursu-
28 ant to the provisions of this section in an amount that shall be the
29 difference between the benefits available under this section and the
30 benefits available to such employee, if any, as provided by such federal
31 law or regulation.
32 § 2. The labor law is amended by adding a new section 196-b to read as
33 follows:
34 § 196-b. Sick leave requirements. 1. Every employer shall be required
35 to provide its employees with sick leave as follows:
36 a. For employers with four or fewer employees in any calendar year,
37 each employee shall be provided with up to forty hours of unpaid sick
38 leave in each calendar year; provided, however, an employer that employs
39 four or fewer employees in any calendar year and that has a net income
40 of greater than one million dollars in the previous tax year shall
41 provide each employee with up to forty hours of paid sick leave pursuant
42 to this section;
43 b. For employers with between five and ninety-nine employees in any
44 calendar year, each employee shall be provided with up to forty hours of
45 paid sick leave in each calendar year; and
46 c. For employers with one hundred or more employees in any calendar
47 year, each employee shall be provided with up to fifty-six hours of paid
48 sick leave each calendar year.
49 For purposes of determining the number of employees pursuant to this
50 subdivision, a calendar year shall mean the twelve-month period from
51 January first through December thirty-first. For all other purposes, a
52 calendar year shall either mean the twelve-month period from January
53 first through December thirty-first, or a regular and consecutive
54 twelve-month period, as determined by an employer.
55 2. Nothing in this section shall be construed to prohibit or prevent
56 an employer from providing an amount of sick leave, paid or unpaid,
S. 8090 6
1 which is in excess of the requirements set forth in subdivision one of
2 this section, or from adopting a paid leave policy that provides addi-
3 tional benefits to employees. An employer may elect to provide its
4 employees with the total amount of sick leave required to fulfill its
5 obligations pursuant to subdivision one of this section at the beginning
6 of the calendar year, provided, however that no employer shall be
7 permitted to reduce or revoke any such sick leave based on the number of
8 hours actually worked by an employee during the calendar year if such
9 employer elects pursuant to this subdivision.
10 3. Employees shall accrue sick leave at a rate of not less than one
11 hour per every thirty hours worked, beginning at the commencement of
12 employment or the effective date of this section, whichever is later,
13 subject to the use and accrual limitations set forth in this section.
14 4. a. On and after January first, two thousand twenty-one and upon the
15 oral or written request of an employee, an employer shall provide
16 accrued sick leave for the following purposes:
17 (i) for a mental or physical illness, injury, or health condition of
18 such employee or such employee's family member, regardless of whether
19 such illness, injury, or health condition has been diagnosed or requires
20 medical care at the time that such employee requests such leave;
21 (ii) for the diagnosis, care, or treatment of a mental or physical
22 illness, injury or health condition of, or need for medical diagnosis
23 of, or preventive care for, such employee or such employee's family
24 member; or
25 (iii) for an absence from work due to domestic violence pursuant to
26 subdivision thirty-four of section two hundred ninety-two of the execu-
27 tive law, a sexual offense, stalking, or human trafficking, for such
28 employee to avail themselves or a family member of services or assist-
29 ance including, but not limited to, to obtain services from a domestic
30 violence shelter, rape crisis center, or other shelter or services
31 program for relief from a family offense matter, sexual offense, stalk-
32 ing, or human trafficking; to participate in safety planning, temporar-
33 ily or permanently relocate, or take other actions to increase the safe-
34 ty of the employee or employee's family members from future family
35 offense matters, sexual offenses, stalking, or human trafficking; to
36 meet with a civil attorney or other social services provider to obtain
37 information and advice on, and prepare for or participate in any crimi-
38 nal or civil proceeding, including but not limited to, matters related
39 to a family offense matter, sexual offense, stalking, human trafficking,
40 custody, visitation, matrimonial issues, orders of protection, immi-
41 gration, housing, discrimination in employment, housing or consumer
42 credit; to file a complaint or domestic incident report with law
43 enforcement; to meet with a district attorney's office; to enroll chil-
44 dren in a new school; or to take other actions necessary to maintain,
45 improve, or restore the physical, psychological, or economic health or
46 safety of the employee or the employee's family member or to protect
47 those who associate or work with the employee.
48 b. For purposes of this section, "family member" shall mean an employ-
49 ee's child, spouse, domestic partner, parent, sibling, grandchild or
50 grandparent; and the child or parent of an employee's spouse or domestic
51 partner. "Parent" shall mean a biological, foster, step- or adoptive
52 parent, or a legal guardian of an employee, or a person who stood in
53 loco parentis when the employee was a minor child. "Child" shall mean a
54 biological, adopted or foster child, a legal ward, or a child of an
55 employee standing in loco parentis.
S. 8090 7
1 5. a. An employer may not require the disclosure of confidential
2 information relating to a mental or physical illness, injury, or health
3 condition of such employee or such employee's family member, or informa-
4 tion relating to absence from work due to domestic violence, a sexual
5 offense, stalking, or human trafficking, as a condition of providing
6 sick leave pursuant to this section.
7 b. An employer may set a reasonable minimum increment for the use of
8 sick leave which shall not exceed four hours. Employees shall receive
9 compensation at his or her regular rate of pay, or the applicable mini-
10 mum wage established pursuant to section six hundred fifty-two of this
11 chapter, whichever is greater, for the use of paid sick leave.
12 6. An employee's unused sick leave shall be carried over to the
13 following calendar year, provided, however, that: (i) an employer with
14 fewer than one hundred employees may limit the use of sick leave to
15 forty hours per calendar year; and (ii) an employer with one hundred or
16 more employees may limit the use of sick leave to fifty-six hours per
17 calendar year. Nothing in this section shall be construed to require an
18 employer to pay an employee for unused sick leave upon such employee's
19 termination, resignation, retirement, or other separation from employ-
20 ment.
21 7. No employer or his or her agent, or the officer or agent of any
22 corporation, partnership, or limited liability company, or any other
23 person, shall discharge, threaten, penalize, or in any other manner
24 discriminate or retaliate against any employee because such employee has
25 exercised his or her rights afforded under this section, including, but
26 not limited to, requesting sick leave and using sick leave, consistent
27 with the provisions of section two hundred fifteen of this chapter.
28 8. An employer shall not be required to provide any additional sick
29 leave pursuant to this section if the employer has adopted a sick leave
30 policy or time off policy that provides employees with an amount of
31 leave which meets or exceeds the requirements set forth in subdivision
32 one of this section and satisfies the accrual, carryover, and use
33 requirements of this section.
34 9. Nothing in this section shall be construed to: a. prohibit a
35 collective bargaining agreement entered into, on or after the effective
36 date of this section from, in lieu of the leave provided for in this
37 section, providing a comparable benefit for the employees covered by
38 such agreement in the form of paid days off; such paid days off shall be
39 in the form of leave, compensation, other employee benefits, or some
40 combination thereof; or
41 b. impede, infringe, or diminish the ability of a certified collective
42 bargaining agent to negotiate the terms and conditions of sick leave
43 different from the provisions of this section.
44 Provided, however, that in the case of either paragraph a or b of this
45 subdivision, the agreement must specifically acknowledge the provisions
46 of this section.
47 10. Upon return to work following any sick leave taken pursuant to
48 this section, an employee shall be restored by his or her employer to
49 the position of employment held by such employee prior to any sick leave
50 taken pursuant to this section with the same pay and other terms and
51 conditions of employment.
52 11. Upon the oral or written request of an employee, an employer shall
53 provide a summary of the amounts of sick leave accrued and used by such
54 employee in the current calendar year and/or any previous calendar year.
55 The employer shall provide such information to the employee within three
56 business days of such request.
S. 8090 8
1 12. Nothing in this section shall be construed to prevent a city with
2 a population of one million or more from enacting and enforcing local
3 laws or ordinances which meet or exceed the standard or requirements for
4 minimum hour and use set forth in this section, as determined by the
5 commissioner. Any paid sick leave benefits provided by a sick leave
6 program enforced by a municipal corporation in effect as of the effec-
7 tive date of this section shall not be diminished or limited as a result
8 of the enactment of this section.
9 13. The commissioner shall have authority to adopt regulations and
10 issue guidance to effectuate any of the provisions of this section.
11 Employers shall comply with regulations and guidance promulgated by the
12 commissioner for this purpose which may include but are not limited to
13 standards for the accrual, use, payment, and employee eligibility of
14 sick leave.
15 14. The department shall conduct a public awareness outreach campaign
16 which shall include making information available on its website and
17 otherwise informing employers and employees of the provisions of this
18 section.
19 § 3. Subdivision 4 of section 195 of the labor law, as amended by
20 chapter 564 of the laws of 2010, is amended to read as follows:
21 4. establish, maintain and preserve for not less than six years
22 contemporaneous, true, and accurate payroll records showing for each
23 week worked the hours worked; the rate or rates of pay and basis there-
24 of, whether paid by the hour, shift, day, week, salary, piece, commis-
25 sion, or other; gross wages; deductions; allowances, if any, claimed as
26 part of the minimum wage; amount of sick leave provided to each employ-
27 ee; and net wages for each employee. For all employees who are not
28 exempt from overtime compensation as established in the commissioner's
29 minimum wage orders or otherwise provided by New York state law or regu-
30 lation, the payroll records shall include the regular hourly rate or
31 rates of pay, the overtime rate or rates of pay, the number of regular
32 hours worked, and the number of overtime hours worked. For all employees
33 paid a piece rate, the payroll records shall include the applicable
34 piece rate or rates of pay and number of pieces completed at each piece
35 rate;
36 § 4. Severability clause. If any clause, sentence, paragraph, subdivi-
37 sion, section or part of this act shall be adjudged by any court of
38 competent jurisdiction to be invalid, such judgment shall not affect,
39 impair, or invalidate the remainder thereof, but shall be confined in
40 its operation to the clause, sentence, paragraph, subdivision, section
41 or part thereof directly involved in the controversy in which such judg-
42 ment shall have been rendered. It is hereby declared to be the intent of
43 the legislature that this act would have been enacted even if such
44 invalid provisions had not been included herein.
45 § 5. This act shall take effect immediately; provided, however that
46 sections two and three of this act shall take effect on the one hundred
47 eightieth day after it shall have become a law; provided, further, that
48 the department of labor may promulgate rules and regulations to effectu-
49 ate the purposes of this act, on or before such effective date.