By Alexandra Lapes and Tracey I. Levy

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leave, that remain in effect despite the expiration of the federal Families First Coronavirus Response Act (FFCRA), which had provided a tax credit to offset the cost of paid time off in these circumstances.

New York State COVID-Related Leave is Ongoing

In addition to any other type of paid or unpaid time off that an employer may offer under its policies or to comply with legal requirements, New York State employers must continue to provide time off for COVID-related reasons, such as for employees who need to take leave because they are under a mandatory or precautionary order of quarantine or isolation due to COVID-19.  New York’s separate COVID-19 sick leave has no expiration date, and as employers are slowly discovering, that means these obligations are long-lasting.

As we noted previously in a series of COVID-19 leave articles on our blog, for many employers COVID-19 sick leave must be paid, depending on the size and net income of the employer.  By way of recap, employers’ obligations for COVID-19 sick leave are determined by the number of employees as of January 1, 2020, and provide for leave as follows:

• If the employer has 10 or less employees and a net income less than $1 million – provide unpaid job-protected leave until the termination of the order of quarantine or isolation;
• For all other employers with 99 or fewer employees – provide at least 5 days of paid job-protected leave and additional job-protected unpaid leave until the termination of the order of quarantine or isolation; and
• If the employer has 100 or more employees – provide 14 days of paid job-protected leave during the order of quarantine or isolation.

New York State provides no reimbursement or subsidy to employers for the paid sick leave benefits required under the law.  Notably, however, employees are not eligible for paid COVID-19 sick leave if they are able to work remotely.

NY Employees Can Take Paid COVID Leave Three Times in the Same Year

Employers in New York State are required to provide COVID-19 sick leave benefits as described above for up to three periods of covered leave per employee. However, the second and third periods of leave must be for a quarantine based on the employee’s own condition and not merely as a precaution due to exposure to others who tested position for COVID-19.

NYS STD/PFL Benefits Are Also Available for COVID-Related Reasons

New York State Short-Term Disability (STD) and Paid Family Leave (PFL) benefits are available simultaneously, with no waiting period, to employees of small and medium employers for the otherwise unpaid portion of a period of leave based on being personally subject to a government-issued quarantine or isolation order.  In other words, employers that are not required to provide more than five days of paid COVID-19 sick leave should direct their employees to apply to the state’s STD/PFL programs for paid benefits for the duration of their quarantine or isolation period.

PFL also is available for an employee to care for a child for the duration of a quarantine or isolation period, and for up to 12 weeks of leave per year for care of a family member who is sick with COVID-19 where the family member’s sickness meets the PFL definition of a serious health condition.

NY Requires Additional Paid Time Off for Vaccinations

Employers in New York State are required to grant employees up to four hours of paid time off for each shot of the COVID-19 vaccine.  Leave for vaccination must be paid at an employee’s regular rate of pay and is in addition to all other paid leaves provided by the employer.  This particular mandate of paid leave for vaccination only applies to vaccinations after its March 12, 2021 effective date, and the law is set to expire by the end of 2022.

New York City added still another paid leave obligation, and it requires employers to provide paid time off for employees’ children to be vaccinated.  Employees can use up to four hours of additional paid sick time, per child, per injection, for the vaccination itself and for care due to temporary side effects.

New Jersey Employers Have Ongoing COVID-Related Leave Requirements

New Jersey requires employers to provide paid leave under the state’s expanded New Jersey Earned Sick and Safe Leave Law (NJESSL), and this obligation is ongoing.  In addition, COVID-19 leave benefits made available to employees through New Jersey’s Family Leave Act (NJFLA) and Temporary Disability Benefits Law (NJTDBL) program remain in effect indefinitely.  While expanded in specific response to COVID-19, these amendments all turn more broadly on the declaration of a state of emergency by the governor due to an epidemic or public health emergency, and directives that an employee or the employee’s family member quarantine or isolate as a result of exposure to a communicable disease.

Notably, New Jersey expanded only the reasons why employees may qualify for NJESSL and the state’s leave benefit programs; it did not add any additional paid or unpaid leave entitlements.  Also, and perhaps for this reason, employees who are able to work remotely while subject to a quarantine order may still be eligible for these New Jersey COVID-related leave benefits, as the New Jersey law does not expressly preclude those employees from taking NJESSL for COVID-related reasons.

NJESSL Extends to Time Getting Vaccinated

The New Jersey Department of Labor has declared that employees are entitled to use NJESSL to get the COVID-19 vaccine, including travel time and recovery from side effects.  The Department created this memo for employees to provide to their employer regarding their additional rights to paid sick leave under NJESSL for COVID-19 vaccine leave, as vaccination is not listed as a reason for time off under the NJESSL law.

Takeaways

As the threat of COVID-19 persists for a third year and new variants emerge to infect more people and some people multiple times, employers in New York and New Jersey should note these ongoing pandemic-related paid leave provisions available to their employees.