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
________________________________________________________________________
10152
IN ASSEMBLY
March 17, 2020
___________
Introduced by M. of A. NOLAN, CRESPO, HEASTIE, PEOPLES-STOKES, WEIN-
STEIN, ABBATE, AUBRY, BARRETT, BLAKE, BUCHWALD, BURKE, BUTTENSCHON,
CAHILL, CARROLL, COLTON, COOK, CRUZ, DARLING, DAVILA, DE LA ROSA,
DenDEKKER, DINOWITZ, ENGLEBRIGHT, EPSTEIN, FAHY, FERNANDEZ, GANTT,
GLICK, GOTTFRIED, GRIFFIN, GUNTHER, HEVESI, JACOBSON, JAFFEE,
JEAN-PIERRE, JOYNER, KIM, LAVINE, LENTOL, LIFTON, MAGNARELLI, McMAHON,
M. G. MILLER, MOSLEY, NIOU, O'DONNELL, ORTIZ, OTIS, PAULIN, PICHARDO,
PRETLOW, QUART, RAMOS, RICHARDSON, RIVERA, RODRIGUEZ, D. ROSENTHAL,
L. ROSENTHAL, ROZIC, RYAN, SAYEGH, SEAWRIGHT, SIMON, SIMOTAS, SOLAGES,
STECK, STERN, STIRPE, TAYLOR, THIELE, VANEL, WALLACE, WEPRIN,
WILLIAMS, ZEBROWSKI -- (at request of the Governor) -- read once and
referred to the Committee on Labor
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12051-02-0
A. 10152 2
1 authorized to issue such order due to COVID-19, at least five days of
2 paid sick leave and unpaid leave until the termination of any mandatory
3 or precautionary order of quarantine or isolation. After such five days
4 of paid sick leave, an employee shall be eligible for paid family leave
5 benefits and benefits due pursuant to disability pursuant to this act.
6 (b) For employers with between eleven and ninety-nine employees as of
7 January 1, 2020, each employee who is subject to a mandatory or precau-
8 tionary order of quarantine or isolation issued by the state of New
9 York, the department of health, local board of health, or any govern-
10 mental entity duly authorized to issue such order due to COVID-19, shall
11 be provided with at least five days of paid sick leave and unpaid leave
12 until the termination of any mandatory or precautionary order of quaran-
13 tine or isolation. After such five days of paid sick leave, an employee
14 shall be eligible for paid family leave benefits and benefits due pursu-
15 ant to disability pursuant to this act.
16 (c) For employers with one hundred or more employees as of January 1,
17 2020, each employee who is subject to a mandatory or precautionary order
18 of quarantine or isolation issued by the state of New York, the depart-
19 ment of health, local board of health, or any governmental entity duly
20 authorized to issue such order due to COVID-19, shall be provided with
21 at least fourteen days of paid sick leave during any mandatory or
22 precautionary order of quarantine or isolation.
23 (d) For public employers, each officer or employee who is subject to a
24 mandatory or precautionary order of quarantine or isolation issued by
25 the state of New York, the department of health, local board of health,
26 or any governmental entity duly authorized to issue such order due to
27 COVID-19 shall be provided with at least fourteen days of paid sick
28 leave during any mandatory or precautionary order of quarantine or
29 isolation. Each officer or employee shall be compensated at his or her
30 regular rate of pay for those regular work hours during which the offi-
31 cer or employee is absent from work due to a mandatory or precautionary
32 order of quarantine or isolation due to COVID-19. For purposes of this
33 act, "public employer" shall mean the following: (i) the state; (ii)
34 a county, city, town or village; (iii) a school district, board of
35 cooperative educational services, vocational education and extension
36 board or a school district as enumerated in section 1 of chapter 566
37 of the laws of 1967, as amended; (iv) any governmental entity operating
38 a college or university; (v) a public improvement or special district
39 including police or fire districts; (vi) a public authority, commis-
40 sion or public benefit corporation; or (vii) any other public corpo-
41 ration, agency, instrumentality or unit of government which exercises
42 governmental power under the laws of this state.
43 (e) Such leave shall be provided without loss of an officer or employ-
44 ee's accrued sick leave.
45 2. For purposes of this act, "mandatory or precautionary order of
46 quarantine or isolation" shall mean a mandatory or precautionary order
47 of quarantine or isolation issued by the state of New York, the depart-
48 ment of health, local board of health, or any government entity duly
49 authorized to issue such order due to COVID-19.
50 3. Upon return to work following leave taken pursuant to this act, an
51 employee shall be restored by his or her employer to the position of
52 employment held by the employee prior to any leave taken pursuant to
53 this act with the same pay and other terms and conditions of employment.
54 No employer or his or her agent, or the officer or agent of any corpo-
55 ration, partnership, or limited liability company, or any other person,
56 shall discharge, threaten, penalize, or in any other manner discriminate
A. 10152 3
1 or retaliate against any employee because such employee has taken leave
2 pursuant to this act.
3 4. An employee shall not receive paid sick leave benefits or any other
4 paid benefits provided by any provisions of this section if the employee
5 is subject to a mandatory or precautionary order of quarantine because
6 the employee has returned to the United States after traveling to a
7 country for which the Centers for Disease Control and Prevention has a
8 level two or three travel health notice and the travel to that country
9 was not taken as part of the employee's employment or at the direction
10 of the employee's employer, and if the employee was provided notice of
11 the travel health notice and the limitations of this subdivision prior
12 to such travel. Such employee shall be eligible to use accrued leave
13 provided by the employer, or to the extent that such employee does not
14 have accrued leave or sufficient accrued leave, unpaid sick leave shall
15 be provided for the duration of the mandatory or precautionary quaran-
16 tine or isolation.
17 5. The commissioner of labor shall have authority to adopt regu-
18 lations, including emergency regulations, and issue guidance to effectu-
19 ate any of the provisions of this act. Employers shall comply with regu-
20 lations promulgated by the commissioner of labor for this purpose which
21 may include, but is not limited to, standards for the use, payment, and
22 employee eligibility of sick leave pursuant to this act.
23 6. Notwithstanding any other provision of law, and for purposes of
24 this act only, for purposes of article 9 of the workers' compensation
25 law, "disability" shall mean: any inability of an employee to perform
26 the regular duties of his or her employment or the duties of any other
27 employment which his or her employer may offer him or her as a result of
28 a mandatory or precautionary order of quarantine or isolation issued by
29 the state, the department of health, a local board of health, or any
30 government entity duly authorized to issue such order due to COVID-19
31 and when the employee has exhausted all paid sick leave provided by the
32 employee's employer under this act.
33 7. Notwithstanding subdivision 1 of section 204 of the workers'
34 compensation law, disability benefits payable pursuant to this act shall
35 be payable on the first day of disability.
36 8. Notwithstanding any other provision of law, and for purposes of
37 this act only, for purposes of article 9 of the workers' compensation
38 law, "family leave" shall mean: (a) any leave taken by an employee from
39 work when an employee is subject to a mandatory or precautionary order
40 of quarantine or isolation issued by the state, the department of
41 health, a local board of health, or any government entity duly author-
42 ized to issue such order due to COVID-19; or (b) to provide care for a
43 minor dependent child of the employee who is subject to a mandatory or
44 precautionary order of quarantine or isolation issued by the state, the
45 department of health, a local board of health, or any government entity
46 duly authorized to issue such order due to COVID-19.
47 9. Notwithstanding any other provision of law, and for purposes of
48 this act only, for purposes of article 9 of the workers' compensation
49 law, disability and family leave benefits pursuant to this act may be
50 payable concurrently to an eligible employee upon the first full day of
51 an unpaid period of mandatory or precautionary order of quarantine or
52 isolation issued by the state of New York, the department of health, a
53 local board of health, or any government entity duly authorized to issue
54 such order due to COVID-19, provided however, an employee may not
55 collect any benefits that would exceed $840.70 in paid family leave and
56 $2,043.92 in benefits due pursuant to disability per week.
A. 10152 4
1 10. Notwithstanding any other provision of law, and for purposes of
2 this act only, for purposes of article 9 of the workers' compensation
3 law, the maximum weekly benefit which the employee is entitled to
4 receive for benefits due pursuant to disability pursuant to subdivision
5 six of this section only shall be the difference between the maximum
6 weekly family leave benefit and such employee's total average weekly
7 wage from each covered employer up to a maximum benefit due pursuant to
8 disability of $2,043.92 per week.
9 11. Notwithstanding subdivision 7 of section 590, and subdivision 2 of
10 section 607, of the labor law, a claim for benefits under article 18 of
11 the labor law due to closure of an employer otherwise subject to this
12 section for a reason related to COVID-19 or due to a mandatory order of
13 a government entity duly authorized to issue such order to close such
14 employer otherwise subject to this section, shall not be subject to a
15 waiting period for a claim for benefits pursuant to such title.
16 12. A mandatory or precautionary order of quarantine or isolation
17 issued by the state, the department of health, a local board of health,
18 or any government entity duly authorized to issue such order due to
19 COVID-19 shall be sufficient proof of disability or proof of need for
20 family leave taken pursuant to this act.
21 13. The provisions of this act shall not apply in cases where an
22 employee is deemed asymptomatic or has not yet been diagnosed with any
23 medical condition and is physically able to work while under a mandatory
24 or precautionary order of quarantine or isolation, whether through
25 remote access or other similar means.
26 14. Nothing in this section shall be deemed to impede, infringe,
27 diminish or impair the rights of a public employee or employer under any
28 law, rule, regulation or collectively negotiated agreement, or the
29 rights and benefits which accrue to employees through collective
30 bargaining agreements, or otherwise diminish the integrity of the exist-
31 ing collective bargaining relationship, or to prohibit any personnel
32 action which otherwise would have been taken regardless of any request
33 to use, or utilization of, any leave provided by this act.
34 15. Notwithstanding any inconsistent provision of law, on or before
35 June 1, 2020, the superintendent of financial services by regulation, in
36 consultation with the director of the state insurance fund and the chair
37 of the workers' compensation board of the state, shall promulgate regu-
38 lations necessary for the implementation of a risk adjustment pool to be
39 administered directly by the superintendent of financial services, in
40 consultation with the director of the state insurance fund and the chair
41 of the workers' compensation board of the state. "Risk adjustment pool"
42 as used in this subdivision shall mean the process used to stabilize
43 member claims pursuant to this act in order to protect insurers from
44 disproportionate adverse risks. Disproportionate losses of any members
45 of the risk adjustment pool in excess of threshold limits established by
46 the superintendent of financial services of the state may be supported,
47 if required by the superintendent, by other members of such pool includ-
48 ing the state insurance fund in a proportion to be determined by the
49 superintendent. Any such support provided by members of the pool shall
50 be fully repaid, including reasonable interest, through a mechanism and
51 period of time to be determined by the superintendent of financial
52 services.
53 16. (a) The superintendent of financial services, in consultation
54 with the director of the state insurance fund and the chair of the work-
55 ers' compensation board shall issue two reports assessing the risk
56 adjustment pool required by this act.
A. 10152 5
1 (b) On or before January 1, 2022, an initial report shall be provided
2 to the speaker of the assembly, the chair of the assembly ways and means
3 committee and the chair of the assembly labor committee, the temporary
4 president of the senate, the chair of the senate finance committee and
5 the chair of the senate labor committee. Such report shall include:
6 the total number of claims filed pursuant to this section for (i) family
7 leave benefits, and (ii) benefits due to disability, as a result of a
8 mandatory or precautionary order of quarantine or isolation due to
9 COVID-19; the aggregate amount of paid family leave claims and disabili-
10 ty claims; the total amount of the claims paid for out of the risk
11 adjustment pool; the threshold limits established by the department of
12 financial services; and any other information the superintendent of
13 financial services deems necessary to provide to the legislature.
14 (c) On or before January 1, 2025, a final report shall be provided to
15 the speaker of the assembly, the chair of the assembly ways and means
16 committee and the chair of the assembly labor committee, the temporary
17 president of the senate, the chair of the senate finance committee and
18 the chair of the senate labor committee. Such report shall include the
19 balance of the risk adjustment pool, if any, the total amount collected
20 through the repayment mechanism established by the department of finan-
21 cial services including interest; and any other information the super-
22 intendent of financial services deems necessary to provide to the legis-
23 lature. If there exists a balance in the risk adjustment pool, the
24 final report shall provide a timeline by which repayment will be
25 completed.
26 17. If at any point while this section shall be in effect the federal
27 government by law or regulation provides sick leave and/or employee
28 benefits for employees related to COVID-19, then the provisions of this
29 section, including, but not limited to, paid sick leave, paid family
30 leave, and benefits due to disability, shall not be available to any
31 employee otherwise subject to the provisions of this section; provided,
32 however, that if the provisions of this section would have provided sick
33 leave and/or employee benefits in excess of the benefits provided by the
34 federal government by law or regulation, then such employee shall be
35 able to claim such additional sick leave and/or employee benefits pursu-
36 ant to the provisions of this section in an amount that shall be the
37 difference between the benefits available under this section and the
38 benefits available to such employee, if any, as provided by such federal
39 law or regulation.
40 § 2. The labor law is amended by adding a new section 196-b to read as
41 follows:
42 § 196-b. Sick leave requirements. 1. Every employer shall be required
43 to provide its employees with sick leave as follows:
44 a. For employers with four or fewer employees in any calendar year,
45 each employee shall be provided with up to forty hours of unpaid sick
46 leave in each calendar year; provided, however, an employer that employs
47 four or fewer employees in any calendar year and that has a net income
48 of greater than one million dollars in the previous tax year shall
49 provide each employee with up to forty hours of paid sick leave pursuant
50 to this section;
51 b. For employers with between five and ninety-nine employees in any
52 calendar year, each employee shall be provided with up to forty hours of
53 paid sick leave in each calendar year; and
54 c. For employers with one hundred or more employees in any calendar
55 year, each employee shall be provided with up to fifty-six hours of paid
56 sick leave each calendar year.
A. 10152 6
1 For purposes of determining the number of employees pursuant to this
2 subdivision, a calendar year shall mean the twelve-month period from
3 January first through December thirty-first. For all other purposes, a
4 calendar year shall either mean the twelve-month period from January
5 first through December thirty-first, or a regular and consecutive
6 twelve-month period, as determined by an employer.
7 2. Nothing in this section shall be construed to prohibit or prevent
8 an employer from providing an amount of sick leave, paid or unpaid,
9 which is in excess of the requirements set forth in subdivision one of
10 this section, or from adopting a paid leave policy that provides addi-
11 tional benefits to employees. An employer may elect to provide its
12 employees with the total amount of sick leave required to fulfill its
13 obligations pursuant to subdivision one of this section at the beginning
14 of the calendar year, provided, however that no employer shall be
15 permitted to reduce or revoke any such sick leave based on the number of
16 hours actually worked by an employee during the calendar year if such
17 employer elects pursuant to this subdivision.
18 3. Employees shall accrue sick leave at a rate of not less than one
19 hour per every thirty hours worked, beginning at the commencement of
20 employment or the effective date of this section, whichever is later,
21 subject to the use and accrual limitations set forth in this section.
22 4. a. On and after January first, two thousand twenty-one and upon the
23 oral or written request of an employee, an employer shall provide
24 accrued sick leave for the following purposes:
25 (i) for a mental or physical illness, injury, or health condition of
26 such employee or such employee's family member, regardless of whether
27 such illness, injury, or health condition has been diagnosed or requires
28 medical care at the time that such employee requests such leave;
29 (ii) for the diagnosis, care, or treatment of a mental or physical
30 illness, injury or health condition of, or need for medical diagnosis
31 of, or preventive care for, such employee or such employee's family
32 member; or
33 (iii) for an absence from work due to domestic violence pursuant to
34 subdivision thirty-four of section two hundred ninety-two of the execu-
35 tive law, a sexual offense, stalking, or human trafficking, for such
36 employee to avail themselves or a family member of services or assist-
37 ance including, but not limited to, to obtain services from a domestic
38 violence shelter, rape crisis center, or other shelter or services
39 program for relief from a family offense matter, sexual offense, stalk-
40 ing, or human trafficking; to participate in safety planning, temporar-
41 ily or permanently relocate, or take other actions to increase the safe-
42 ty of the employee or employee's family members from future family
43 offense matters, sexual offenses, stalking, or human trafficking; to
44 meet with a civil attorney or other social services provider to obtain
45 information and advice on, and prepare for or participate in any crimi-
46 nal or civil proceeding, including but not limited to, matters related
47 to a family offense matter, sexual offense, stalking, human trafficking,
48 custody, visitation, matrimonial issues, orders of protection, immi-
49 gration, housing, discrimination in employment, housing or consumer
50 credit; to file a complaint or domestic incident report with law
51 enforcement; to meet with a district attorney's office; to enroll chil-
52 dren in a new school; or to take other actions necessary to maintain,
53 improve, or restore the physical, psychological, or economic health or
54 safety of the employee or the employee's family member or to protect
55 those who associate or work with the employee.
A. 10152 7
1 b. For purposes of this section, "family member" shall mean an employ-
2 ee's child, spouse, domestic partner, parent, sibling, grandchild or
3 grandparent; and the child or parent of an employee's spouse or domestic
4 partner. "Parent" shall mean a biological, foster, step- or adoptive
5 parent, or a legal guardian of an employee, or a person who stood in
6 loco parentis when the employee was a minor child. "Child" shall mean a
7 biological, adopted or foster child, a legal ward, or a child of an
8 employee standing in loco parentis.
9 5. a. An employer may not require the disclosure of confidential
10 information relating to a mental or physical illness, injury, or health
11 condition of such employee or such employee's family member, or informa-
12 tion relating to absence from work due to domestic violence, a sexual
13 offense, stalking, or human trafficking, as a condition of providing
14 sick leave pursuant to this section.
15 b. An employer may set a reasonable minimum increment for the use of
16 sick leave which shall not exceed four hours. Employees shall receive
17 compensation at his or her regular rate of pay, or the applicable mini-
18 mum wage established pursuant to section six hundred fifty-two of this
19 chapter, whichever is greater, for the use of paid sick leave.
20 6. An employee's unused sick leave shall be carried over to the
21 following calendar year, provided, however, that: (i) an employer with
22 fewer than one hundred employees may limit the use of sick leave to
23 forty hours per calendar year; and (ii) an employer with one hundred or
24 more employees may limit the use of sick leave to fifty-six hours per
25 calendar year. Nothing in this section shall be construed to require an
26 employer to pay an employee for unused sick leave upon such employee's
27 termination, resignation, retirement, or other separation from employ-
28 ment.
29 7. No employer or his or her agent, or the officer or agent of any
30 corporation, partnership, or limited liability company, or any other
31 person, shall discharge, threaten, penalize, or in any other manner
32 discriminate or retaliate against any employee because such employee has
33 exercised his or her rights afforded under this section, including, but
34 not limited to, requesting sick leave and using sick leave, consistent
35 with the provisions of section two hundred fifteen of this chapter.
36 8. An employer shall not be required to provide any additional sick
37 leave pursuant to this section if the employer has adopted a sick leave
38 policy or time off policy that provides employees with an amount of
39 leave which meets or exceeds the requirements set forth in subdivision
40 one of this section and satisfies the accrual, carryover, and use
41 requirements of this section.
42 9. Nothing in this section shall be construed to: a. prohibit a
43 collective bargaining agreement entered into, on or after the effective
44 date of this section from, in lieu of the leave provided for in this
45 section, providing a comparable benefit for the employees covered by
46 such agreement in the form of paid days off; such paid days off shall be
47 in the form of leave, compensation, other employee benefits, or some
48 combination thereof; or
49 b. impede, infringe, or diminish the ability of a certified collective
50 bargaining agent to negotiate the terms and conditions of sick leave
51 different from the provisions of this section.
52 Provided, however, that in the case of either paragraph a or b of this
53 subdivision, the agreement must specifically acknowledge the provisions
54 of this section.
55 10. Upon return to work following any sick leave taken pursuant to
56 this section, an employee shall be restored by his or her employer to
A. 10152 8
1 the position of employment held by such employee prior to any sick leave
2 taken pursuant to this section with the same pay and other terms and
3 conditions of employment.
4 11. Upon the oral or written request of an employee, an employer shall
5 provide a summary of the amounts of sick leave accrued and used by such
6 employee in the current calendar year and/or any previous calendar year.
7 The employer shall provide such information to the employee within three
8 business days of such request.
9 12. Nothing in this section shall be construed to prevent a city with
10 a population of one million or more from enacting and enforcing local
11 laws or ordinances which meet or exceed the standard or requirements for
12 minimum hour and use set forth in this section, as determined by the
13 commissioner. Any paid sick leave benefits provided by a sick leave
14 program enforced by a municipal corporation in effect as of the effec-
15 tive date of this section shall not be diminished or limited as a result
16 of the enactment of this section.
17 13. The commissioner shall have authority to adopt regulations and
18 issue guidance to effectuate any of the provisions of this section.
19 Employers shall comply with regulations and guidance promulgated by the
20 commissioner for this purpose which may include but are not limited to
21 standards for the accrual, use, payment, and employee eligibility of
22 sick leave.
23 14. The department shall conduct a public awareness outreach campaign
24 which shall include making information available on its website and
25 otherwise informing employers and employees of the provisions of this
26 section.
27 § 3. Subdivision 4 of section 195 of the labor law, as amended by
28 chapter 564 of the laws of 2010, is amended to read as follows:
29 4. establish, maintain and preserve for not less than six years
30 contemporaneous, true, and accurate payroll records showing for each
31 week worked the hours worked; the rate or rates of pay and basis there-
32 of, whether paid by the hour, shift, day, week, salary, piece, commis-
33 sion, or other; gross wages; deductions; allowances, if any, claimed as
34 part of the minimum wage; amount of sick leave provided to each employ-
35 ee; and net wages for each employee. For all employees who are not
36 exempt from overtime compensation as established in the commissioner's
37 minimum wage orders or otherwise provided by New York state law or regu-
38 lation, the payroll records shall include the regular hourly rate or
39 rates of pay, the overtime rate or rates of pay, the number of regular
40 hours worked, and the number of overtime hours worked. For all employees
41 paid a piece rate, the payroll records shall include the applicable
42 piece rate or rates of pay and number of pieces completed at each piece
43 rate;
44 § 4. Severability clause. If any clause, sentence, paragraph, subdivi-
45 sion, section or part of this act shall be adjudged by any court of
46 competent jurisdiction to be invalid, such judgment shall not affect,
47 impair, or invalidate the remainder thereof, but shall be confined in
48 its operation to the clause, sentence, paragraph, subdivision, section
49 or part thereof directly involved in the controversy in which such judg-
50 ment shall have been rendered. It is hereby declared to be the intent of
51 the legislature that this act would have been enacted even if such
52 invalid provisions had not been included herein.
53 § 5. This act shall take effect immediately; provided, however that
54 sections two and three of this act shall take effect on the one hundred
55 eightieth day after it shall have become a law; provided, further, that
A. 10152 9
1 the department of labor may promulgate rules and regulations to effectu-
2 ate the purposes of this act, on or before such effective date.
